Bombay High Court
Ashok Hariba Shinde And Anr vs Vitthal Tatyaba Raut (Deceased, ... on 14 January, 2021
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
(2) WPST-509-21.doc
BDP-SPS
Bharat
D. IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Pandit
Digitally signed
by Bharat D.
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 509 OF 2021
Pandit
Date:
2021.01.18
16:47:02 +0530
Mr. Ashok Hariba Shinde and Anr. .... Petitioners.
V/s (Defendants)
Vitthal Tatyaba Raut
(Deceased, Through (LRs)
1A. Ashok Vitthal Raut and Ors. .... Respondents.
----- (Plaintiffs)
Mr. Uday B. Nighot for the Petitioners.
Mr. Dattatraya Ashok Shinde son of Petitioner No.1 present.
Mr. Kirankumar Phakad for the Respondents.
------
CORAM: NITIN W. SAMBRE, J.
DATE: JANUARY 14, 2021
P.C.:-
1] Respondents initiated Regular Civil Suit No.230 of 1999 in the
Court of Civil Judge, Junior Division, Koregaon. The said suit is for declaration and injunction in which issues were framed at Exhibit-64 on 26th April 2010.
2] On 20th November, 2010 since the Counsel for the Plaintiffs i.e. Respondents herein so also Plaintiffs remained absent, the said suit came to be dismissed for want of prosecution.
3] Respondents as such moved an application under Order IX 1/6 (2) WPST-509-21.doc Rule 4 vide Misc. Application No.36 of 2012 for restoration of suit which came to be rejected on 12th August, 2016 as the Respondents/Plaintiffs remained absent before the Civil Court so as to adduce evidence on the application for restoration. 4] Thereafter, vide Misc. Application No.61 of 2019, Respondents moved prayer for condonation of delay of 3 years and 30 days with the prayer for restoration of Misc. Application No.36 of 2012 for restoration of suit. Alongwith the said Application, Application- Exhibit-11 for grant of injunction under Section 151 of the Civil Procedure Code came to be moved. The said application came to be allowed vide order dated 3rd October, 2020. The Petitioners/original Defendants feeling aggrieved by the said order preferred Misc. Civil Appeal No.92 of 2020 which came to be dismissed vide order impugned dated 22nd December, 2020. As such, this Petition. 5] The submission of Mr. Nighot learned Counsel for the Petitioner is, Respondents/Plaintiffs were not diligent and have acted negligently which has resulted in dismissal of the suit so also application for restoration of the suit and that being so, Court below has committed 2/6 (2) WPST-509-21.doc an error in recording finding that there is prima facie case in favour of the Respondents/Plaintiffs. He would further urge that the findings recorded by the Revenue Court in the matter of Mutation Entry based on the Sale Deed of 1981 alleged to have been executed by father of the Petitioners is already a subject matter of challenge at the behest of the Petitioners of which this Court also should take judicial note of. As such, according to him, the order impugned is not sustainable. 6] The learned Counsel for the Respondents would urge that order of injunction is based on concluded title in favour of the Respondents/ Plaintiffs. He would further urge that even the order of Revenue Court is in favour of the Respondents/Plaintiffs and that being so, the order impugned is in accordance with law. He would further urge that there are concurrent findings and as such, this Court should be slow in interfering with the findings recorded by the courts below in extraordinary jurisdiction of this Court.
7] The learned Counsel for the Respondents at this stage submits that if the Petitioners agree, let the suit of the Respondents be restored to the file by quashing and setting aside the orders of dismissal of suit 3/6 (2) WPST-509-21.doc so also dismissal of restoration application for condonation of delay by putting the Respondents to certain conditions.
8] Mr. Nighot, learned Counsel for the Petitioners after having received instructions from the son of Petitioner No.1 who is authorized to give instructions on behalf of both the Petitioners would urge that Respondents should be put to strict conditions and the hearing of the suit be expedited. He would further urge that the Respondents can be granted liberty to move fresh application under Exhibit-5 seeking injunction. As such, this Court after recording consent, may pass appropriate orders of restoration of the suit. 9] In have dwelt on factual matrix and controversy involved in the Petition and appreciated the consent extended by the learned respective Counsels for the parties. In the light of the submissions made by the respective learned Counsel for the parties, in my opinion, in view of the consent extended, as has been mutually agreed, Suit being Regular Civil Suit No. 230 of 1999 is ordered to be restored to the file of Civil Judge, Junior Division, Koregaon, by setting aside all the adverse orders.
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(2) WPST-509-21.doc 10] As a consequence of above, Misc. Application No.36 of 2012 which was moved under Order IX Rule 4 so also Misc. Application No.61 of 2019 seeking condonation of delay and seeking further restoration of the restoration application stands allowed, subject to payment of costs of Rs 15,000/- to be deposited in the Civil Court within a period of eight weeks from today. Needless to clarify that the Petitioners would be entitled to withdraw the amount of costs. 11] It is further observed that as a consequence of disposal of the Misc. Application No.36 of 2012 which was moved under Order IX Rule 4 of CPC so also Misc. Application No.61 of 2019 seeking condonation of delay of 3 years and 30 days and seeking restoration of restoration application No.36 of 2012, the impugned orders passed by both the Courts below granting injunction are hereby set aside. 12] Parties are directed to maintain status quo as on today in regard to possession of the property.
13] Parties hereto agree that they shall appear before the Court of 5/6 (2) WPST-509-21.doc Civil Judge, Junior Division, Koregaon on 22/1/2021. No separate notice will be required to be served to the parties to the suit. It is clarified that if further default is noticed by the Civil Court in the matter of non-cooperation on the part of the Respondents/Plaintiffs for expeditious disposal of the suit which is pending since 1999, the Court below will be at liberty to pass such appropriate orders adverse to the interest of the Respondents/Plaintiffs as it deems fit. 14] Petition stands disposed of in the above terms.
( NITIN W. SAMBRE, J. ) 6/6