[Cites 2, Cited by 0]
Bombay High Court
Shri. Vasant Ganesh Phadke And Ors. vs M/S Vaishnavi Developers Thr Its ... on 20 February, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:8802
907.AO.178.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 178 OF 2026
WITH
INTERIM APPLICATION NO. 945 OF 2026
IN
APPEAL FROM ORDER NO. 178 OF 2026
Vasant Ganesh Phadke and Ors. .. Appellants
Versus
M/s. Vaishnavai Developers Respondent
.. (Orig. Plaintiff)
....................
Mr. Vivek B. Rane, Advocate for Appellants.
Mr. Atul Damle, Senior Advocate a/w. Mr. Vivek Salunke and Ms.
Payal Vardhan, Advocates for Respondent.
....................
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 20, 2026.
P.C.:
1. Heard Mr. Rane, learned Advocate for Appellants and Mr.
Damle, learned Senior Advocate for Respondent.
2. On 18.02.2026, the following order was passed on
mentioning the present Appeal From Order:-
"1. Not on Board. Mentioned by way of filing praecipe dated
18.02.2026. Perused the praecipe.
2. Heard Mr. Rane, learned Advocate for Appellants and Mr.
Tiwari, learned Advocate for Respondent.
3. Short point of law arises in the present Appeal from
Order. The Suit has been dismissed by the learned Trial Court
under Order VII Rule 11 of the Code of Civil Procedure, 1908
(for short 'CPC') on the legal ground that despite Plaintiff - Firm
claiming to be a registered partnership firm it has not produced
the partnership certificate neither disclosed the names of the
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907.AO.178.2026.doc
partners which is a prime and mandatory requirement under the
provisions of Section 69 (2) of the Partnership Act, 1932.
4. Being aggrieved Plaintiff has filed Regular Civil Appeal
before learned District Judge and in that proceeding by virtue of
the impugned order dated 23.04.2025, the learned Judge has
stayed the order and proceedings. Such an order of stay when
the Suit has been dismissed under Order VII Rule 11 of the CPC
is directly in the teeth of the decision of the Supreme Court in
the case of IEEE Mumbai Section Welfare Association Vs. Global
IEEE Institute for Engineers. 1
5. The Supreme Court holds that when the Plaint itself
stands rejected it cannot be said that the Appeal filed against
such an order can be a continuation of the suit proceedings.
6. Mr. Tiwari, learned Advocate enters appearance on behalf
of original Plaintiff. He would submit that he is holding for
concerned Advocate on record - Mr. V. V. Salunke. Mr. Salunke
is directed to remain present on the next adjourned date failing
which the Appeal from Order will have to be allowed by this
Court.
7. Stand over to 20th February 2026. To be placed under the
caption 'First on Board'.
8. Praecipe is disposed."
3. Today, the matter was kept 'First on Board' for hearing, Mr.
Damle, learned Senior Advocate appears for Appellant, Plaintiff before
the Appellate Court. He would submit that the observations made in
paragraph No.3 of the aforesaid order have been duly complied with
by Plaintiff before the Appellate Court albeit before the order under
Order VII Rule 11 of the Code of Civil Procedure, 1908 was passed by
the Appellate Court.
4. He would also refer to and rely upon the decision of the
Supreme Court in the case of Mohammadhanif Mohammadibrahim
Patel and Ors. Vs. Pallaviben Rajendra Kumar Patel and Ors. passed in
1 Civil Appeal No.(s).7235/2025 @ Special Leave Petition (Civil) No(s).14208 of 2025) decided
on 27.05.2025
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907.AO.178.2026.doc
Special Leave Petition © No.27549 of 2025 reported in 2025 SCC
OnLine SC 2526 to answer the question raised by the Court in
paragraph No.4 of the previous order. He would submit that the first
Appellate Court can undoubtedly re-examine both the question of facts
and law and can grant appropriate relief being discretionary in nature
under the power of the Appellate Court, but however the same must be
exercised judicially based on the well-settled principles of a prima facie
case, irreparable injury and balance of convenience. He would submit
that by virtue of the impugned order, the reference is made to another
proceedings between the same parties in respect of same subject
matter.
5. Be that as it may, no purpose will be served in keeping the
present Appeal From Order pending as it will be merely of academic
interest. Rather it would be appropriate if the learned Appellate Court
is directed to dispose of Regular Civil Appeal No.14 of 2025 as
expeditiously as possible and in any event within a period of four
weeks from today so as to put an end to the lis between the parties.
6. Both the parties shall appear before the learned Appellate
Court on 23rd February 2026 (Monday) at 11:00 a.m. alongwith a
server copy of this order and the learned Appellate Court shall list the
matter accordingly as per its convenience and diary for hearing.
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907.AO.178.2026.doc
7. All contentions of the parties are expressly kept open before
the Appellate Court.
8. This Court has not given any imprimatur on the merits of the
case.
9. In view of the above directions, Appeal From Order No.178
of 2026 is disposed.
10. In view of the disposal of Appeal From Order, pending
Interim Application No.945 of 2026 is accordingly disposed.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.02.20
19:13:56 +0530
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