Dismissed

Arun Vishnu Karande v. Umakant Shreepad Prabhu and Ors.

Bombay HC23 Sept 2013WP/5469/2004

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, by consent of parties, set aside the summary dismissal of a revision application and an appeal by the Small Causes Court appellate bench. The matter was restored to the appellate bench for reconsideration within three months.

What did the court decide?

Quashed and restored revision application and appeal to the Appellate Bench of the Small Causes Court at Mumbai; restricted hearing date fixed; decision deadline set within three months.

Arun Vishnu Karande Vs Umakant Shreepad Prabhu… — Civil Procedure and Limitation | Bombay HC (2013)

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1 / 4 CRA/382/2008gr

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Tapadia RR/B.41

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 382 OF 2008

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Mrs Jyoti Sanjay Mudbidri and Ors

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..Petitioners

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Shri Umakant Shripad Prabhu and Ors .. Respondents

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WITH

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WRIT PETITION NO.5469 of 2004

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Dr.A.V.Kanade ..Petitioner

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Vs Umakant Shivpad Prabhu and .. Respondents Ors

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Mr. A.A.Kumbhakoni a/w Mr. Prakash R. Gayani and Ashutosh C. Khumbhakoni, Advocates for the petitioners. Mr. R.R.Arolkar, Advocate for the Respondents.

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CORAM : R.G.KETKAR,J. DATE : 23/09/2013

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PC:

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Heard Mr A. A. Kumbhakoni, learned counsel for the petitioners and Mr. R.R.Arolkar, learned counsel for the respondents in both matters at length.

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Civil Revision Application No.382 of 2008 challenges the Judgment and order dated 22.2.2008 passed by the Appellate Bench of the Small Causes Court at Mumbai, (Bandra Branch), in Revision Application No.18 of 2007 preferred by the applicants (original defendant nos. 1(a) to 1(c)) challenging the Judgment

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2 / 4 CRA/382/2008gr

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and order dated 22.2.2008, whereby the Appellate Court dismissed the Revision Petition. Writ Petition No.5469 of 2004 is preferred by the original defendants challenging the order dated 18.10.2003 passed by the Appellate Bench of the Court Small Causes at Bombay, (Bandra Branch) in Appeal No.154 of 2003. By that order, the Appeal preferred by the petitioners was summarily dismissed under order 41, Rule 11(a)of C.P.C.

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Mr.Kumbhakoni invited my attention to the Full Bench decision of this Court in the case of Bhartiben Shah Vs. Gracy Thomas, reported in 2013 (2) Mh.L.J. 25 and in particular paragraphs 63, 66 and 67. He also invited my attention to the findings recorded by the Appellate Bench in Revision Application No.18 of 2007 and in particular paragraphs 11,12 and 20. The Appellate Bench dismissed the Revision Application on the ground that the order passed by the trial Court under section 9A of CPC, being purely interlocutory order, the Revision Application against that order is not maintainable. Mr Kumbhakoni submitted that in view of the decision of the Full Bench in the case of Bharatiben (supra), the findings recorded by the Appellate Bench in Revision Application is not sustainable at all.

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Mr Arolkar, on the other hand, upon taking instructions from the respondents, submits that by consent the impugned order dated 22.2.2008 passed by the Appellate Bench in Revision

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3 / 4 CRA/382/2008gr

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Application No.18 of 2007 may be set aside and the said Revision Application may be restored to the file of the Appellate Bench. He further submitted that the Appellate Bench may be directed to dispose of the Revision Application in a time bound manner.

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As far as the order dated 18.10.2003 passed by the Appellate Bench of the Small Causes Court in Appeal No.154 of 2003 is concerned, by that order the Appellate Court summarily dismissed the Appeal under Order 41, Rule 11(a) of C.P.C. Mr Kumbhakoni invited my attention to two Agreements both dated 1.10.1979 and submitted that interpretation of clauses of these Agreements is contentious issue between the parties. The Appellate Court could not have dismissed the Appeal summarily. Mr Arolkar fairly submitted that the said order may be set aside and Appeal No.154 of 2003 may be restored before the Appellate Bench of the Small Causes Court and the same may be directed to be disposed of in a time bound manner.

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The learned counsel appearing for the parties state that the petitioners and the respondents will appear before the Appellate Bench of the Court of Small causes on 14.10.2013 and for that no fresh notice be issued to them. In view thereof, by consent of the parties, the following order is passed.

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(i) The order dated 22.2.2008 passed by the Appellate Bench of the Court of Small causes in Revision Application No.18 of

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4 / 4 CRA/382/2008gr

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2007 is quashed and set aside. Revision Application No.18 of 2007 is restored to the file of the Appellate Bench of the Small Causes Court at Mumbai. The Appellate Bench will consider the issue of maintainability of the Revision Application in light of the Full Bench decision of this Court in the case of Bhartiben (supra). All contentions of the parties are expressly kept open.

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(ii) Rule in Civil Revision Application No.382 of 2008 is made absolute accordingly, with no order as to costs.

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(iii) The order dated 18.10.2003 passed by the Appellate Bench of the Court of Small Causes in Appeal No.154 of 2003 is quashed and set aside. Appeal No.154 of 2003 is restored to the Appellate Bench of the Court of small Causes, Mumbai. All contentions of the parties in that regard are expressly kept open.

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(v) The Appellate Bench of the Court of Small Causes is requested to decide Revision Application No.18 of 2007 and Appeal No.154 of 2003 within three months from the date of appearance of the parties.

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(vi) Rule is made absolute accordingly, with no order as to costs.

Arun Vishnu Karande v. Umakant Shreepad Prabhu and Ors.

Case brief

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Arun Vishnu Karande v. Umakant Shreepad Prabhu and Ors.

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