Bombay High Court
Dilip Baburao Nannajkar Decd. Thr. Lhrs ... vs Vishwanath Baloba Nannajkar And Anr on 22 July, 2022
Author: M. S. Karnik
Bench: M. S. Karnik
23.wpst.9115-22.doc
PMB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
WRIT PETITION ST. NO.9115 OF 2022
PRADNYA
PRADNYA MAKARAND
MAKARAND BHOGALE
BHOGALE Date:
2022.07.22
19:16:13
+0530
Dilip Baburao Nannajkar
since deceased through LRs.
Smt. Mahananda Dilip Nannajkar and anr. ..Petitioners
vs.
Vishwanath Baloba Nannajkar and ors. ..Respondents
------------
Mr. Shriram S. Redij for petitioners.
Mr. Umesh R. Mankapure for respondent no.1.
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CORAM : M. S. KARNIK, J.
DATE : JULY 22, 2022.
P.C. :
1. Heard Mr. Redij, learned counsel appearing on behalf of the petitioners and Mr. Mankapure, learned counsel appearing on behalf of the respondent no.1.
2. In this writ petition filed under Article 227 of the Constitution of India, the petitioners have prayed for the following substantive reliefs :-
"(a) this Hon'ble Court be please to set aside order dated 19/03/2021 passed by the Ld. Appeal Court below Exhibit 101 dated 01/03/2021 in Regular Civil Appeal No.163 of 2014 pending before Hon'ble District Court, Solapur;1
23.wpst.9115-22.doc
(b) This Hon'ble Court be pleased to set aside Order dated 19/03/2021 passed by the Ld. Appeal Court below Exhibit 103 dated 01/03/2021 in Regular Civil Appeal No.163 of 2014 pending before Hon'ble District Court, Solapur;
(c) this Hon'ble Court be please to set aside order dated 12/11/2021 passed by the Ld. Appeal Court below Exhibit 108 dated 16/10/2021 in Regular Civil Appeal No.163 of 2014 pending before Hon'ble District Court, Solapur;
(d) this Hon'ble Court be pleased to direct the Ld. District Court, Solapur to consider the documents produced along with list Exhibit 84 and enlisted in List Exhibit 94 for adjudicating the Regular Civil Appeal No.163 of 2014 pending before Ld. District Court, Solapur."
3. Without stating the detailed facts, suffice it to observe that the petitioners are the original defendants in Regular Civil Suit instituted by the respondent no.1 (original plaintiff) in the year 2002 for perpetual injunction. The plaintiff's suit was decreed. The decree was interfered with in appeal filed by the present petitioners before the Appellate Court. The plaintiff challenged the judgment and decree of the Appellate Court by way of a Second Appeal in this Court. The Second Appeal was partly allowed. The matter was remanded to the Appellate Court for a decision in terms of the order passed by this Court dated 2
23.wpst.9115-22.doc 20.12.2016. During the pendency of the Appeal, pursuant to the remand, the petitioners (original defendants) made the applications Exhibit 101, 103 and 105. Application Exhibit 101 is an application for carrying out local inspection. Exhibit 103 and 105 are applications for placing on record additional documents in accordance with the consent minutes of order of this Court dated 15.01.2019 in another round of litigation that ensued between the parties in Writ Petition No.2544 of 2018. The operative part of the order dated 15.01.2019 reads thus :-
"a. The impugned order dated 17.11.2017 passed by Ad-hoc District Judge-1 and Asst. Sessions Judge, Barshi below Exh. 61 in R.C.A. No.163/2014 is quashed and set aside.
b. The Defendants/Respondents herein are at liberty to refer and/or to produce on record the certified copies of Judgment and decree in earlier round of litigation i.e. in Special Civil Suit No.80/1972 and all consequential the certified copies of Judgment and Order passed upto the Hon'ble High Court in those proceedings. The Ld. First Appellate Court will read the Judgment and Decree of earlier litigations in accordance with the provision of Indian Evidence Act and decide the appeal on its own merits."
4. Learned counsel for the petitioners submitted that the applications Exhibit 103 and 105 are made in terms of the 3
23.wpst.9115-22.doc order dated 15.01.2019 passed by this Court. The other documents which are sought to be produced are consequential documents pursuant to the judgment and decree in the earlier round of litigation and therefore, the respondent no.1 cannot object for its production. Mr. Mankapure, learned counsel for respondent no.1 seriously contests this position taken by Mr. Redij.
5. Be that as it may, by the impugned orders dated 19.03.2021 and 12.11.2021 below Exhibits 103 and 105, the Appellate Court, upon perusing the applications and say and after hearing the learned counsel, observed that considering the grounds, the applications will be heard along with the main Appeal. Likewise so far as application Exhibit 101 for local inspection is concerned, the Appellate Court has passed a similar order dated 19.03.2021.
6. Mr. Redij submitted that before the matter proceeds for final arguments, the said applications must be decided in the first instance by the Appellate Court. He further submits that no effective purpose will be served if the applications are considered and heard along with the main 4
23.wpst.9115-22.doc Appeal as this will seriously prejudice the petitioners case.
7. In my opinion, the apprehension of Mr. Redij is unfounded. The Appellate Court shall obviously decide the applications having regard to the observations made by this Court in terms of the order passed by this Court dated 15.01.2019 in Writ Petition No.2544 of 2018 and in accordance with law. Furthermore, the impugned order does not at all reflect that the Appellate Court has expressed any opinion on the merit of the applications. There is nothing wrong in the approach of the Appellate Court. The other reason why I do not want to interfere at this stage is that the suit is of the year 2002 in respect of which the appeal is preferred in the year 2014 and the same is still pending pursuant to the remand by this Court. No prejudice is caused to the petitioners.
8. Mr. Mankapure submitted that the applications are made only after the Appellate Court reserved the matter for judgment. Mr. Redij, however, counters this submission of Mr. Mankapure by submitting that the occasion for filing these applications arose only after the Appellate Court 5
23.wpst.9115-22.doc expressed that the documents which are subject matter of applications will not be considered. There is nothing on record to accept Mr. Redij's contention as the applications are to be heard even according to the impugned order.
9. Having regard to what is observed above and considering the nature of the orders passed, I see no reason to interfere with the orders passed by the Appellate Court.
10. The writ petition is rejected with no order as to costs.
(M. S. KARNIK, J.) 6