SOU.VIMAL W/O RAMDAS TANDALE v. BHASKAR S/O SHARADCHANDRA KAMONE

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

WRIT PETITION NO. 4416/2008

Sou. Vimal W/o Ramdas Tandale, Aged about 56 years, Occupation - Service, R/o. Plot No.42, Bhoge Lay-out, Bhamti, Nagpur. ...Petitioner. ...versus...

Bhaskar S/o Sharadchandra Kamone, Aged about 32 years, Occupation - Business, R/o. C/o. Devanand Deshmukh,

Adivasi Colony, Bhamti, Nagpur. ...Respondents ====================================== Shri Anil Bangadkar, Adv. for the petitioner Shri N.J.Mohta, Adv. for Respondent. ======================================

CORAM : B.P.Dharmadhikari, J.

DATE : 18 ^th November, 2008

1. Rule. Rule made returnable forthwith. Heard finally at the stage of admission.

2. Advocate Shri Bangadkar for petitioner/ original defendant has contended that in Regular Civil Appeal filed by him, the lower Appellate Court has erroneously concluded that the petitioner/appellant was claiming possession by interim order. He contends that petitioner only wanted stay of execution

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of sale deed by court in suit for specific performance decreed in favour of the present respondent. He further contends that respondent is already in possession in capacity as a tenant and if he obtains sale deed through the Court, then that relationship may come to an end, prejudicing his contention in regular civil appeal.

3. Advocate Shri Mohta for respondent contends that this was not the contention before the Lower Appellate Court. He argues that petitioner wanted to dispossess the respondent tenant from the possession and for that purpose, a misleading contention that petitioner was himself in possession was made. He contends that in view of the misleading contention, prayer for stay has been refused and further argues that this Court should not also interfere in writ jurisdiction in favour of the person who has attempted to play fraud on lower appellate Court. He wants to site certain judgments in the matter.

4. However, perusal of the impugned order does not in any way prima facie show that present petitioner/appellant made any incorrect or fraudulent statement before the lower appellate Court. Facts disclose that respondent/tenant filed the suit for specific performance, which came to be decreed and

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petitioner has filed Regular Civil appeal NO. 49/2008, challenging the judgment and decree. It is on record & there is no dispute that present respondent continues in possession.

4. In these circumstances, in view of the argument and clarification by Advocate Shri Bangadkar, I do not find it necessary to delve further into controversy. The operation and effect of the impugned judgment and decree dated 30^th

July, 2007, in Special Civil Suit No. 114/2001 delivered by Second Joint Civil Judge, Senior Division, Nagpur, is stayed during the pendency of Regular Civil Appeal No. 49/2008 with clarification that the petitioner shall not in any way disturb the possession of present respondent and shall not in any way create any third party interest and try to incumbent the suit property during the pendency of the appeal.

5. Hearing in Regular Civil Appeal No. 49/2008 is expedited. The petitioner/appellant to file appropriate paper book by 31^st

January, 2009 . After the paper book is so filed, the 8^th

Ad-hoc District Judge Nagpur, shall decide the appeal finally as early as possible, preferably on or before 15^thMarch, 2009.

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Rule made absolute in aforesaid terms. However, in the facts and circumstances of the case, there would be no order as to costs.

JUDGE

Rvjalit