Sk. Naimul Haq Sk. Ajij And Others vs Jubedabi W/O Gayasuddin
2023 Latest Caselaw 83 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                                     Writ Petition No.632/2021
                              Sk. Naimul Haq and others V Juybedabi
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                     Court's or Judge's Orders
or directions and Registrar's orders.
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               Mr. B.N. Mohta, Adv. for petitioners.
               Mr. Dhoot, Adv. h/f Mr. N.R. Saboo, Adv. for respondent.

                                        CORAM : AVINASH G GHAROTE, J.

DATE : 03-01-2023

The contention is that defendant nos. 2B, 2C and 2E (pg 14), who are defendants in RCS No.149/96, which came to be dismissed by the judgment and decree dated 22-04-2008 (pg 21), were not made parties in RCA No.47/2008, challenging the aforesaid judgment and decree (page 40), which came to be dismissed. Similar was the position in Second Appeal No. 470/2016 which came to be allowed and the matter was remanded back by judgment dated 19-07-2018.

2. An application for dismissal of the suit came to be filed at Exh 193 (pg 66) on the ground that the suit as against the original defendant no.2B already stood abated as he was not added as respondent in the First Appeal as well as Second Appeal. The application has been dismissed by the learned trial Court by an

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order dated 26-09-2019 (pg 73).

3. Mr. Dhoot, learned Counsel holding for Mr. Saboo, does not dispute the position, that original defendant nos. 2B, 2C and 2E were not added as respondents in the First Appeal as well as in the Second Appeal.

4. It is a settled position of law that there cannot be two contrary decrees in the same suit. Since the respondent no.2B was not made party to RCA No.47/2008, the decree passed in RCA No.149/96, dismissing the suit against him attained finality. Even if the remand is there in Second Appeal that would not change the finality which has accorded to the decree in RCA No.149/1996 insofar as defendant nos. 2B, 2C and 2E are concerned. The suit for permanent injunction and possession and unless it is found that the relief can be segregated the above position would hold.

5. List the matter on 10-01-2023 for further orders.

JUDGE

Deshmukh