Bombay High Court
Parighabai Laxman Turkane (Died) Lrs ... vs Ashabai Raosaheb Lasure And Another on 19 September, 2018
Author: V.L. Achliya
Bench: V.L. Achliya
1 914-SA-647-18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 SECOND APPEAL NO. 647 OF 2018
WITH CA/9695/2018 IN SA/647/2018
PARIGHABAI LAXMAN TURKANE (DIED) LRS HIRABAI AND OTHERS
VERSUS
ASHABAI RAOSAHEB LASURE AND ANOTHER
...
Advocate for Appellants : Mr. Ajay G. Talhar
Advocate for Respondent No. 1 : Mr. Shivraj B. Kadu
...
CORAM : V.L. ACHLIYA, J.
DATED : 19th SEPTEMBER, 2018
ORDER :-
1. Heard learned counsel for appellants - original plaintiffs and respondent No.1 - original defendant. Perused the Judgments passed by the Courts below.
2. Learned Advocate for the appellants submits that the Courts below have erred in dismissing the suit on the ground of maintainability by holding that earlier suit filed by plaintiffs was dismissed under Order IX, Rule 8 of the Code of Civil Procedure, 1908 (for short, "CPC") and thereby, the appellants-plaintiffs are precluded from bringing a fresh suit by virtue of Order IX, Rule 9 of the CPC. In this context, the learned counsel invited attention to order of dismissal of the suit dated 06-07-1998 passed in Regular Civil Suit No 277 of 1992, which reads as under -
"the plaintiffs are absent when called repeatedly. No application for adjournment is filed. Advocate Shri. Pimpalwadkar appearing for the plaintiffs submits that plaintiffs are not attending the case. Hence there is no point in adjourning the matter. Therefore he submits to dismiss the suit. In view of said submissions, the suit is dismissed."::: Uploaded on - 21/09/2018 ::: Downloaded on - 23/09/2018 01:11:26 :::
2 914-SA-647-18
3. Learned counsel submits that the order as quoted above clearly spells out that the suit was dismissed under Order IX, Rule 3 of the CPC, and not under Order IX, Rule 9 of CPC as plaintiffs as well as defendants were absent when the suit was called out for hearing. It is pointed out that under Order IX, Rule 4 of the CPC, if the suit is dismissed on account of any of the contingency referred to under Order IX, Rule 2 and 3 of the CPC, the plaintiffs can bring a fresh suit or may apply for restoration of the suit. In this back ground, the learned counsel for appellants submits that concurrent findings recorded by the Courts below, that subsequent suit filed by plaintiffs is not maintainable in law in view of dismissal of earlier suit are perverse and contrary to law. It is further submitted that the findings recorded as to the merit of the case are also perverse for the reason that there is no document or instrument of transfer or decree by virtue of which the suit land owned by appellant was transferred in the name of defendant No. 1 to hold that under section 14 of Hindu Succession Act, the respondent No. 1 became absolute owner of suit property.
4. On the other hand, learned counsel for the respondent-original defendant No. 1 supported the Judgments and orders passed by the Courts below with contentions that there is absolutely no perversity in any of the findings recorded by the Courts below. He submits that there are concurrent findings on facts recorded by the Courts below and no substantial question of law is raised in appeal, so as to entertain this appeal. He further submits that in the order dated 06-07-1998 passed in RCS No. 277 of 1992, the presence or absence of the defendant has not been specifically recorded. It is therefore presumed that defendant ::: Uploaded on - 21/09/2018 ::: Downloaded on - 23/09/2018 01:11:26 ::: 3 914-SA-647-18 was present when the order was passed. It is further submitted that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the suit property becomes absolute property of defendant No. 1 as same was given to her as per compromise in proceeding filed by her under section 125 of the Criminal Procedure Code, the appellants have no right to claim relief in respect of the said property.
5. On due consideration of submissions advanced in the light of the Judgments and orders passed by the Courts below, I am of the view, the appeal filed by the appellants raises following substantial questions of law.
(I) Whether the Courts below committed error in law in holding that the suit brought by plaintiffs is not maintainable in law?
(II) Whether the Courts below committed error in law in holding that the earlier suit filed by plaintiffs i.e. RCS No. 277 of 1992 was dismissed in exercise of powers under Order IX, Rule 8 of the CPC and by virtue of Order IX, Rule 9 of the CPC, the plaintiffs are precluded to bring a fresh suit based upon same cause of action?
(III) Whether the Courts below committed error in law in holding the suit property became absolute property of defendant No. 1 by virtue of section 14(1) of the Hindu Succession Act, 1956 ?
6. In view of the above, I am inclined to pass the following order:
(i) Admit.
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(ii) Issue notice to respondents. Mr. Kadu, learned
counsel waives service of notice on behalf of respondent No. 1.
(iii) Call for record and proceedings.
(iv) Printing of paper-book is dispensed with.
(v) The appellants are directed to prepare the private paper-book within six months.
(vi) Hearing of the appeal is expedited.
(vii) After submission of the private paper-book, the parties at liberty to move the Court seeking listing of appeal for final hearing.
Sd/-
( V.L. ACHLIYA, J. ) MTK.
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