Bombay High Court
Sambhaji Babasaheb Khot vs Tukaram Shivappa Khot (Deceased) ... on 21 November, 2022
Bench: Nitin W. Sambre
Digitally
signed by
SHANTANU
SHANTANU SHANKARSA
SHANKARSA DHUDUM
DHUDUM Date:
2022.11.22
17:26:39
+0530
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3.AO.21.22 aw. IA.133.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 21 OF 2022
WITH
INTERIM APPLICATION NO. 133 OF 2022
IN
APPEAL FROM ORDER NO. 21 OF 2022
Sambhaji Babasaheb Khot ...Appellant
V/s.
Tukaram Shivappa Khot & Ors. ...Respondents
Mr. Vaibhav R. Gaikwad for the appellant.
CORAM : NITIN W. SAMBRE, J.
DATED : 21st NOVEMBER, 2022
P.C.:
1. As the appellant / defendant has failed to submit his written
statement, after the suit was decreed in an appeal, the District Judge
passed an order of remand permitting the appellant to place on record
written statement with following observations read thus:-
ORDER
1) Regular Civil Appeal No. 83/2012 is allowed and matter is
remanded back to the Trial Court for fresh hearing subject to following
conditions.
a) The appellant shall pay the costs of Rs. 10,000/- (Rupees Ten
Thousand only) to the respondents within 15 days from today.
b) The appellant shall serve all the respondents before Ld. Trial
Court.
c) The appellant shall not seek any adjournment before the Ld.
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Trial Court.
d) The appellant shall deposit the cost of Rs.5,000/- (Rupees Five
Thousand only) before Ld. Trial Court within 15 days from the
date of this order.
f) Upon depositing the costs within time Ld. Trial Court shall take
the written statement of the defendant on amended plaint on
record and decide the matter in accordance with the Law on its
own merits.
g) Both parties are at liberty to lead evidence.
h) Ld. Trial Court shall decide the matter as early as possible
preferably within six months from the date of first appearance
and both the parties shall co-operate Ld. Trial Court to decide
the matter.
i) Appellant shall file undertaking before this Court and before the
Ld. Trial Court that he/they will abide the conditions imposed by
this Court.
j) In the event of single breach of any of the condition, the
Judgment and decree passed by Ld. Trial Court dtd.19/12/2011
will be treated as revived as it is.
2. It is the contention of the learned counsel for the appellant Mr.
Gaikwad that the Appellate Court has put the appellant to a stringent
condition that in case if the conditions mentioned therein are not
complied with in its true letter and spirit, the suit was to be termed as
dismissed as has been already ordered. It is claimed that such order is
unreasonable as the same does not grant reasonable opportunity to the
appellant to defend his claim before the Court below.
3. I have appreciated the said submissions.
4. The Civil Suit was initiated in 1999 which was for declaration
and injunction.
5. After the suit was decreed, the appellant has preferred the
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appeal. The Appellate Court has exercised equity in favour of the
appellant and in the interest of justice permitted to accept his written
statement subject to compliance of certain reasonable conditions. The
appellant in fact has complied with the conditions as placed before the
first Appellate Court. Further, he claimed that in case of prayer for
adjournment on genuine ground, the Appellate Court has closed such
remedy.
6. I am afraid the judgment of the Appellate Court cannot be
stretched to the extent of the claim put forth by Mr. Gaikwad of
rejection of prayer for adjournment even on reasonable and serious
grounds.
7. That the aforesaid observations are just and proper in the
circumstances of the case in hand, which warrant no interference in
the order of remand, the appeal as such stands dismissed.
8. Proceedings be decided as directed by the Appellate Court within
the time bound manner as directed by Appellate Court.
9. In view of the dismissal of A.O. No. 21 of 2022, the pending I.A.
No. 133 of 2022 is also disposed of.
(NITIN W. SAMBRE, J.)
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