Babasaheb Ananata Dangat vs Dinkar Shankar Dangat And Anr
2022 Latest Caselaw 2508 Bom

                   (38)-WP-5765-2021.doc.


BHARAT
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
DASHARATH
PANDIT


Digitally signed
by BHARAT
DASHARATH
PANDIT
Date:



                                      WRIT PETITION NO. 5765 OF 2021
2022.03.15
19:29:56 +0530




                   Babasaheb Ananta Dangat & Ors.                     ..Petitioners

                           Versus

                   Dinkar Shankar Dangat & Anr.                      ..Respondents

                   Mr. Vivek v. Salunke, for the Petitioners.
                   Mr. Dinkar Shankar Dangat, Respondent No.1, present in person.

                                                   CORAM : NITIN W. SAMBRE, J.

DATE : 14th MARCH, 2022 P.C.

1] Respondent No.1 appears in person. He informs that, even respondent No.2 , his brother, who is at present indisposed, is served and will be appearing in the matter. In view of above, service is complete.

2. This Court is required to be sensitive to paras 41 and 42 of the judgment of the Apex Court in the matter of Rasiklal Manikchand Dhariwal and Anr V/s. M.S.S. Food Products reported in (2012) 2 SCC 196 which read as under :-

"41. The contention, at the first blush, appears to be attractive but has no substance at all. In the first place, once the hearing of the suit is concluded, and the suit is closed

bdp-sps 1 of 3 (38)-WP-5765-2021.doc.

for judgment, Order 9 Rule 7 of the Code has no application at all. The very language of Order 9 Rule 7 makes this clear. This provision presupposes the suit having been adjourned for hearing. The courts, time out of number, have said that adjournment for the purposes of pronouncing judgment is no adjournment of the "hearing of the suit". On 17-3-2005, the trial court in the present case did four things, namely,

(i) closed the evidence of the plaintiff as was requested by the plaintiff; (ii) ordered the suit to proceed ex-parte as the defendants failed to appear on that date; (iii) Heard the arguments of the advocate for the plaintiff; and (iv) kept the matter for pronouncement of judgment on 28-3-2005. In view of the above, Order 9 Rule 7 of the code has no application at all and it is for this reason that the application made by the defendants under this provision was rejected by the trial court."

"42. Secondly, once the suit is closed for pronouncement of judgment, there is no question of further proceedings in the suit. Merely because the defendants continued to make application after application and the trial court heard those applications, it cannot be said that such appearance by the defendants is covered by the expression "appeared on the day fixed for his appearance" occurring in Order 9 Rule 7 of the Code and thereby entitling them to address the court on the merits of the case.

bdp-sps                                                   2 of 3
 (38)-WP-5765-2021.doc.




3]    As prayed by Respondent No.1, stand over to 5/4/2022 by
way of last chance.


                                 [NITIN W. SAMBRE, J.]




bdp-sps                                             3 of 3