Bombay High Court
Smt. Yamunabai Tukaram Yadav And ... vs Smt. Kondabai Bhikaji Sankpal on 9 March, 2022
Bench: N. R. Borkar
Digitally signed
CHITRA by CHITRA
SANJAY
SANJAY SONAWANE
SONAWANE Date: 2022.03.11
16:11:48 +0530
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Chitra Sonawane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.11272 OF 2017
A/W
CIVIL APPLICATION NO.2433/2018
IN
WRIT PETITION NO.11272 OF 2017
Yamunabai Tukaram Yadav
& Anr. .... Petitioners.
Versus
Smt.Kondabai Bhikaji Sankpal .... Respondent.
---------
Miss Sangeeta S. Vaidya for petitioners.
None for the respondent.
---------
CORAM : N.R. BORKAR, J.
DATE : 9th MARCH, 2022.
P.C.:
1. This petition takes an exception to the order dated 28.08.2017
passed by the District Judge, Pune in Civil Revision Application no.13/2016
whereby the learned District Judge dismissed the revision filed by the
petitioners and confirmed the order passed by the Small Causes Court at
Pune in R.C.S.No.111/2010.
2. The husband of the petitioner no.1, Tukaram Maruti Yadav who died
on 6.6.2005 had filed a Regular Civil Suit No.1129 of 1993 against the
respondents for eviction and possession in the Court of Civil Judge, Junior
Division, Pune.
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3. The trial court decreed the suit vide judgment and decree dated
24.4.1994. Appeal was filed against the said decree and the appellate
court remanded the matter back to the trial court. The suit was again
decreed by the judgment and order dated 27.4.1998. Again the appeal
was filed and the appellate court by relying upon the Judgment reported in
AIR 1990 Bombay 337 held that the Civil Court has no jurisdiction to
entertain the suit against a gratuitous licensee. The appellate court,
however, instead of returning the plaint, dismissed the suit. Second appeal
was filed before this court against the judgment and decree of the appellate
court. In the second appeal, order of dismissal of the suit was set aside
and the plaint was allowed to be presented to the Small Causes Court.
Accordingly, the plaint was presented before the Court of Small Causes,
Pune. The Small Causes Court, Pune decreed the suit. Pursuant to the said
decree Darkhast was filed and possession of the suit premises was
obtained.
4. It appears that thereafter, application for setting aside the decree
passed by the Small Causes Court came to be filed alleging it to be exparte
decree. Said application was allowed, the decree was set aside and the suit
was restored to the file. An application was thereafter filed by the
respondent for restoration of possession. The trial court allowed the said
application by order dated 16.1.2016 and directed the petitioner to hand
over the possession of the suit premises to the respondent. The petitioner
had filed revision against the order dated 16.1.2016. The revisional court
dismissed the revision by order impugned in this petition.
5. This Court (Coram:M.S.Sonak,J) on 9.10.2017 had passed the
following order.
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1. Not on board. Upon production, taken on
board.
2. Issue notice to the respondents, returnable
on 14th November 2017 on Supplementary
Board.
3. In addition to the usual mode of service,
private service is permitted. The petitioners to
file affidavit of service.
4. Till the next date, there shall be ad-interim
relief in terms of prayer clause (c) subject to the
petitioner depositing before the trial court an
amount of Rs.75,000/- on or before the next
date. If the amount is not deposited, this ad-
interim order shall be deemed to be vacated
without further reference to this Court.
5. It is made clear that pendency of the present
proceedings shall not be an impediment to the
trial court to proceed with the suit on its own
merits.
6. All concerned to act on the basis of
authenticated copy of this order.
6. This Court (Coram: Revati Mohite Dere, J) thereafter on 9.12.2019
had passed the following order.
1. Not on board. Taken on board and heard with
matter at serial no.1 i.e. Writ Petition
No.11272/2017.
2. By this application, the applicant seeks
clarification of para 4 of the order dated
9.10.2017, which reads as under;
"4.Till the next date, there shall be ad-
interim relief in terms of prayer clause (c)
subject to the petitioner depositing before
the trial court an amount of Rs.75,000/- on
or before the next date. If the amount is
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not deposited, this ad-interim order shall
be deemed to be vacated without further
reference to this Court."
3. Learned counsel for the applicant states that
the applicant has deposited Rs.75,000/- on
25.10.2017 in the trial Court as directed by this
Court (Coram:M.S.Sonak,J) vide order dated
9.10.2017. Learned counsel for the applicant
states that the matter was adjourned to
14.11.2017, however, it has never come up on
Board after 9.10.2017, and as such the ad-interim
relief granted would stand continued, the
applicant having deposited the amount
mentioned in the order within the stipulated
period i.e. before 14.11.2017.
4. It is made clear that since there is
compliance of the order of deposit dated
9.10.2017 and the matter has not come up on
board thereafter, the ad-interim relief is
continued until further orders.
5. The application is accordingly disposed of.
6. All concerned to act on the basis of
authenticated copy of this order.
7. I have heard the learned counsel for the petitioner. The matter was
listed yesterday. However, as there was no appearance on behalf of the
respondent and therefore, the matter was adjourned. Today again there is
no appearance on behalf of the respondent. Learned Counsel for the
petitioner submits that considering the facts and circumstances, hearing of
the suit be expedited and interim order passed by this court be continued
till disposal of the suit. Learned counsel for the petitioners has tendered an
Undertaking that in case suit is dismissed the petitioner undertakes to
hand over possession of the suit premises to respondents.
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8. Admittedly, the parties are litigating since 1993. The respondent
has not taken any steps to get the interim order vacated passed by this
Court on 9.10.2017. Considering these facts and circumstances of the case
and in view of the Undertaking filed by the petitioners, in my view, it
would be appropriate to direct the trial court to decide the suit
expeditiously and to continue the interim order passed by this Court.
9. In the result, following order is passed.
:ORDER:
1. The trial court is directed to decide
R.C.S.No.111/2010 as early as possible and in any
case within one year from the date of receipt of copy
of this order.
2. The interim order passed by this Court on
9.10.2017 shall remain in operation till decision of the
suit.
3. Needless to mention that, while deciding the suit,
the trial court shall pass an appropriate order in
relation to an amount of Rs.75,000/- deposited by the
present petitioners, pursuant to the order dated
9.10.2017.
4. Petition is disposed of in above terms.
5. In view of disposal of the petition, Civil Application
No.2433/2018 does not survive and the same is
disposed of accordingly.
(N.R. BORKAR, J.)
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Chitra Sonawane
