Allowed

Nagendrapati Naonidhipati Tripathi v. the State of Maharashtra,through Coll.of Bombay

Bombay HC15 Apr 2024AO/729/2011

Case brief

AI extract

What is this about?

The Single Judge allowed the appeal against an order dismissing a civil suit due to non-deposit of interim costs and sentencing the appellant to civil imprisonment. The court set aside the impugned order, restored the suit for merits upon deposit of the amount, and directed expeditious hearing.

What did the court decide?

Set aside impugned order; restore suit to file of trial court for merits upon deposit of Rs.50,000/- within two weeks; direct trial court to expedite hearing.

Nagendrapati Naonidhipati Tripathi Vs the State of… — Execution and Attachment | Bombay HC (2024)

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38-AO-729-2011.doc

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Chitra Sonawane.

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Digitally signed by CHITRA CHITRA SANJAY SANJAY SONAWANE SONAWANE Date: 2024.04.17 14:34:12 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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 Appeal from Order No.729 of 2011
 With

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 Civil Application No.6721 of 1995
 With
 Civil Application No.256 of 1990

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Mr Dharmendrapathi Nagendrapati
Tripathi
Age: 67 Years, Indian Inhabitant residing at
Flat No.:104, Neeloyoug Residency,
Gaurishankar Wadi No.1, Pantnagar,
Ghatkopar, Mumbai 400 075.... Appellant

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Versus

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1. The State of Maharashtra
through the Collector of Bombay (Enc),
Old Customs House, Fort, Bombay 400 023

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2. The Tehsildar (Enc), Mulund,
Bombay 400 080.

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3. The Maharashtra Housing & Area
Developement Board having
their office at Bandra, Bombay 400 051… Respondents.

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Mr Rakesh Agrawal i/by Parmeshwar Bhise for the appellant.
None for respondents No.1 and 2.
Ms Neha Bhide for respondent No.3/MHADA.

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 Coram : R. N. Laddha, J.
 Date : 15 April 2024.

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Page No. 1 of 5
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15 April 2024

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Chitra Sonawane. 38-AO-729-2011.doc

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P.C. :

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Heard Mr Rakesh Agrawal, the learned Counsel
appearing on behalf of the appellant, and Ms Neha Bhide, the
learned Counsel appearing on behalf of respondent No.3.

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2.The appellant (original plaintiff) had filed Short Cause
Suit No.3952 of 1989 before the learned City Civil Court at
Bombay, challenging the auction notices dated 16 March 1989
and 10 May 1989 issued by respondents 1 and 2 (original
defendants No.1 and 2). The appellant had also filed a Notice
of Motion seeking interim reliefs. The learned trial Court, on
30 May 1989, granted this interim relief upon an undertaking
given by the appellant to deposit a sum of Rs.50,000/- by 31
May 1989. Subsequently, on 29 September 1989, the learned
trial Court, by exercising powers under Rules 2A and 11 of
Order XXXIX of the Code of Civil Procedure, 1908,
dismissed the appellant’s suit and directed him to undergo
civil imprisonment. The appellant initially assailed the
impugned order dated 29 September 1989 by filing a First
Appeal bearing No.46 of 1990 before this Court. However,
by an order dated 27 June 2011, the appellant was allowed to
convert the said First Appeal to the present Appeal from
Order.

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Page No. 2 of 5

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15 April 2024

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Chitra Sonawane.

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38-AO-729-2011.doc

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3. Mr Rakesh Agrawal, the learned Counsel, appearing for
the appellant, submits that the dismissal of the suit stems from
the appellant’s inability to deposit the specified amount with
the trial Court. The appellant made earnest efforts to arrange
the necessary funds but faced insurmountable challenges due
to the prevailing circumstances. Despite the appellant’s
apology, the Court directed him to submit an affidavit
explaining the circumstances that prevented compliance. The
appellant duly filed the affidavit, but the trial Court remained
unsatisfied with the explanation provided and refused to
accept the unconditional apology tendered by the appellant
for the non-compliance in depositing the ordered amount.
The learned Counsel contends that there was a divergence
between the two Government departments, necessitating a
thorough enquiry. However, this crucial fact was overlooked
by the trial Court and it ordered the appellant to deposit
Rs.50,000/- within one day. Although the appellant agreed, he
could not comply, leading to a contempt notice. Ultimately,
the trial Court deemed the appellant’s failure to deposit the
amount of Rs.50,000/- as contempt of the court.

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4. According to the learned Counsel, the impugned order
dismissing the suit and sentencing the appellant to prison or

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Page No. 3 of 5
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15 April 2024

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Chitra Sonawane. 38-AO-729-2011.doc

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compensation is legally flawed. The learned Counsel submits
that the appellant is now ready to deposit Rs.50,000/- in the
Court and seeks the restoration of the suit in the interest of
justice. On the other hand, Ms Neha Bhide, the learned
Counsel, representing respondent No.3, supports the
impugned order and contends that the trial Court’s decision
cannot be deemed unjustified due to lack of specific
compliance.

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5.After carefully considering the rival submissions and
having examined the record, this Court is of the view that the
impugned order cannot be endorsed, and the appellant
deserves an opportunity to contest the suit on merits.

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6.Upon perusing the material placed on record, it appears
that due to the appellant’s failure to deposit Rs.50,000/- as
directed by the trial Court, the suit was dismissed, and the
appellant was sentenced to civil imprisonment. While it is
acknowledged that the Court has the authority to impose
terms related to costs, payments, or other matters, these
requirements should be considered practically rather than
punitively for every error. Considering the overall
circumstances, a pragmatic approach should have been taken,

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Page No. 4 of 5
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15 April 2024

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Chitra Sonawane. 38-AO-729-2011.doc

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leading to appropriate orders. Unfortunately, the appellant’s
attempt to pursue a fair decision in the suit after a contested
process was disregarded. The trial Court’s overly technical
perspective contributed to this situation. Furthermore, the
appellant is prepared to comply with the Court’s order
regarding the deposited amount.

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7.Given the above, the appeal succeeds and is allowed by
setting aside the impugned order dated 29 September 1989
passed in S.C. Suit No.3952 of 1989 subject to the deposit of
Rs.50,000/- as ordered by the trial Court, within two weeks
from the date of uploading of this order. As a result, the said
suit shall stand restored to the file of the learned trial Court
for being considered on its merits. Furthermore, considering
the elapsed time, the learned trial Court is directed to
expedite the hearing of the suit. Accordingly, the pending
applications also stand disposed of.

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Page No. 5 of 5
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15 April 2024

Nagendrapati Naonidhipati Tripathi v. the State of Maharashtra,through Coll.of Bombay

Case brief

What is this about?

What did the court decide?

Nagendrapati Naonidhipati Tripathi v. the State of Maharashtra,through Coll.of Bombay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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