Mahadeo Bhimrao Munde And Others vs Bhimrao Nagorao Munde, ...
2023 Latest Caselaw 9767 Bom

                                     1                       921 SA-818-2013.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                     921 SECOND APPEAL NO.818 OF 2013

         MAHADEO BHIMRAO MUNDE AND OTHERS
                          VERSUS
BHIMRAO NAGORAO MUNDE, L.R.VAIJNATH DAJIBA MUNDE, L.RS.
                PANDURANG AND OTHERS
                             ...
         Advocate for Appellants : Mr. Warad Sunil V.
                             ....

                                 CORAM : S. G. MEHARE, J.

                                 DATE    : 20.09.2023

PER COURT :

1. Heard the learned counsel for the appellants. He would submit

that a Civil Suit bearing R.C.S. No. 201 of 1969 for partition and

separate partition of the lands against their father was filed by the next

friend of the plaintiffs as they were minor. Initially, the suit was filed

through the mother/guardian. She died, thereafter, their grandmother

represented them as a next friend. The grandmother of the appellants

compromised the suit against defendant Nos. 3 to 5, who were the

purchaser of the suit lands. The suit for partition and separate

possession was dismissed on merit. However, no appeal was preferred.

against the dismissal of the suit. It has also been argued that when the

plaintiffs/appellant No.4 Dnyonba attained the majority in the year

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1985, suit was filed in 1987. However, it was withdrawn with a

liberty to file fresh suit. In view of the said liberty he had filed the suit

in the year 1992.

2. It has been vehemently argued that the compromise terms were

not in terms of Order XXXII Rule 7 of Sub Section 1 of the Code of Civil

Procedure. The Court did not expressly record its leave, in the

proceeding. Therefore, the said decree was not binding upon the

appellants. This legal aspects was not considered by the courts. Beside

the above issue, the suit was also dismissed on the ground of

limitation.

3. There is chequered history of the ligation. The next friend of

the appellants had taken a decision to compromise with some of the

defendants Nos. 3 to 5, but the said compromise was again impugned

in another suit, in which impugned Judgment and order have been

passed. Considering the chequered history and substantial question of

law raised by the learned counsel for the appellant, the Court is of the

view that it is necessary to hear the respondents before admission.

Hence, issue notice to the respondents before admission returnable on

30th November, 2023.

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4. On the previous date, the learned counsel Mr. S.V. Warad

appeared before the Court. However, he was seeking adjournment on

the ground that in the morning the file was handed over to him;

hence, was not prepared well. However, he tried to argue the matter.

Since he was not prepared with the matter, he was unable to assist the

Court properly. Therefore, the Court has recorded following findings

in the order dated 30th August 2023. " The Court put some questions

on the facts and law but he appeared not prepared. He was unable to

assist the court properly. He was realized his mistake ".

5. Today, same lawyer appeared before the Court and rendered the

proper assistance to the Court. It seems that due to handing over the

file in the morning, he could not render proper assistant to the Court

today Considering his sincere efforts and rendering the appropriate

assistance to the Court today, above observations from the order of 30 st

August 2023 stands expunged.

( S. G. MEHARE ) JUDGE

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