Shri. Bapu Gopal Mandekar and Others v. Lt. Maruti Kale Mandekar (Deceased)

Bombay HC13 Jun 2025AO/322/2024

Case brief

AI extract

What is this about?

Bombay High Court AO 322/2024 IA 7845/2024 Mandekar partition separate possession decree set aside ex-parte defendant nos. 8 to 10 written statement remand first appellate court substantial questions of law ad interim relief prayer clause (a) notice final disposal 12 March 2025 Gauri Godse 7 January 2025

What did the court decide?

Interim procedural order only: notice issued to respondents for final disposal of the appeal on the three substantial questions of law, returnable on 12 March 2025; Rule on interim relief in terms of prayer clause (a) made returnable on 12 March 2025; ad interim relief in terms of prayer clause (a) granted till the next date. ¶¶32

Shri. Bapu Gopal Mandekar and Others vs Lt. Maruti Kale Mandekar (Deceased) — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Substantial question of law I: whether the first appellate court was justified in setting aside the trial court's decree for partition and remanding the matter to the trial court for fresh decision, permitting defendant nos. 8 to 10 (served but absent, suit ex-parte) to file written statements. +2 more

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Detailed headnote1 paragraphs

Bombay High Court, Civil Appellate Jurisdiction — Appeal from Order No. 322 of 2024 with Interim Application No. 7845 of 2024; Shri Bapu Gopal Mandekar and Ors (Appellants/Applicants) v. Lt. Maruti Kale Mandekar (Deceased) (Respondent); Coram: Gauri Godse, J.; order dated 7 January 2025. Interim procedural order: the appeal questions the first appellate court's setting aside of the trial court's decree for partition and separate possession — a decree not opposed by defendant nos. 8 to 10, who stood served but absent, the suit having proceeded ex-parte against them — and that court's remand permitting the said defendants to file written statements. Three substantial questions of law framed covering (i) justification for setting aside the decree and remanding for fresh decision, (ii) sustainability of permitting written statements without findings excusing the defendants' absence despite service of summons, and (iii) whether the appeal should be remanded to the first appellate court for decision on merits. Notice for final disposal returnable 12 March 2025; counsel for Respondent No. 8 waived notice; remaining respondents to be served by private notice with affidavit of service. Rule on interim relief in terms of prayer clause (a) returnable 12 March 2025; ad interim relief in terms of prayer clause (a) granted till next date. No holding on merits rendered; no statute or precedent cited in this order.

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Digitally signed VARSHA by VARSHA VIJAY VIJAY RAJGURUDate: RAJGURU 2025.01.0915:37:33 +0530

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88-ao-322-2024-ia-7845-2024.doc

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varsha

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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APPEAL FROM ORDER NO. 322 OF 2024

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WITH

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INTERIM APPLICATION NO. 7845 OF 2024

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APPEAL FROM ORDER NO. 322 OF 2024

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Shri Bapu Gopal Mandekar and Ors … Appellants/Applicants

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vs.

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Lt. Maruti Kale Mandekar (Deceased) … Respondent

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Mr. R.M. Haridas i/b. Mr. Prasad P. Kulkarni for Appellants. Mr. Sachin Gawade for Respondent No.8.

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CORAM : GAURI GODSE, J. DATED : 7^th JANUARY 2025

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ORDER:

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Heard learned counsel for the parties. The appeal from order raises the following substantial questions of law:

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I) The trial court’s decree for partition and separate possession was not opposed by defendant nos. 8 to 10 who filed the first appeal, the said defendants though served failed to appear in the suit and the suit proceeded ex-parte against them. In view of these facts, whether the first appellate court

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Page no. 1 of 3

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88-ao-322-2024-ia-7845-2024.doc

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was justified in setting aside the decree for partition and remanding the matter to the trial court for deciding it afresh by permitting the said defendants to file a written statement?

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II) Whether the order passed by the first appellate court permitting defendant nos. 8 to 10 to file written statement is sustainable in the absence of any specific findings regarding justifying the absence of the said defendants in the trial court, though they were served with the suit summons?

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III) Whether setting aside the trial court’s decree can be said to be justified for the reasons recorded in the impugned order, and whether it would be necessary to remand the appeal to the first appellate court for deciding on merits?

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Issue notice to the respondents for final disposal of the appeal on the aforesaid questions of law. Notice is made returnable on 12^th March 2025.

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Learned advocate for Respondent no. 8 waives notice.

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In addition to Court notice, learned advocate for the appellants to serve the remaining respondents, by private notice and file affidavit of service, before the next date.

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Page no. 2 of 3

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88-ao-322-2024-ia-7845-2024.doc

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INTERIM APPLICATION NO. 7845 OF 2024

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Rule on interim relief in terms of prayer clause (a) is made returnable on 12^th March 2025.

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Learned advocate for Respondent no. 8 waives notice.

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In addition to Court notice, learned advocate for the applicants to serve the remaining respondents, by private notice and file affidavit of service, before the next date.

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Till next date, there will be ad interim relief in terms of prayer clause (a).

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(GAURI GODSE, J.)

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Page no. 3 of 3

Shri. Bapu Gopal Mandekar and Others v. Lt. Maruti Kale Mandekar (Deceased)

Case brief

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Shri. Bapu Gopal Mandekar and Others v. Lt. Maruti Kale Mandekar (Deceased)

Case brief

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What the court decided

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