1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION NO. 177/2010 IN SECOND APPEAL NO. 29/2006 (Hiraman s/o Vyankati Churad vs. Rajesh Shahu) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. Brahme, Adv. for appellant Mr. V V Bhangde, Adv.for Respondent CORAM : A.P. BHANGALE, J. DATED : June 15, 2010. 1. Heard. By this application filed by respondent, it is prayed that the interim order passed by this Court dated 191.2006 as confirmed later by order dated 13.3.2008 be vacated, on the ground that material facts have been suppressed from this Court by the appellant (original defendant) herein. 2. The facts in brief are : Original plaintiff had filed suit for ejectment, possession and perpetual injunction against the appellant based upon his title. The Courts below found concurrently that original plaintiff is the owner of the suit property and the appellant is the trespasser. The concurrent judgments were under challenge before this Court and the appellant claiming that he is in possession of the suit property, by suppressing material fact when he is, in fact, not in possession thereon, succeeded in obtaining interim order, while praying for interim stay to the execution of concurrent judgments 2 passed by the Courts below. 3. Learned counsel for the plaintiff pointed out that during hearing of application under O.41 R.5 of the Civil Procedure Code, for interim stay pending hearing and final disposal of Second Appeal No.29/2006 the defendant claimed that he is in possession and occupation of the suit plot and residing in the house with his family peacefully without any obstruction and prayed for stay to the further proceedings in the execution on 13.3.2008. This Court was, therefore,pleased to continue the interim stay granted earlier at ad-interim stage on 19.1.2006. My attention is also invited by learned Counsel appearing for original plaintiff to the reply filed by the appellant to the present application. In the reply, the appellant admitted that he is residing at Plot No.10 opposite Nasare Sabhagriha, Shrikrishna Traders, Nagpur. According to learned counsel for plaintiff by suppressing material facts deliberately and intentionally from this Court, the appellant inducted third party into the suit plot taking disadvantage of the interim relief as also pendency of Second Appeal. My attention is also invited to the ruling in R.Varadarajan vs. Thirumangai Naidu and others reported in (1997) 10 SCC 6328 to argue that interim relief obtained by the appellant cannot be continued because of suppression of material facts from the Court that the appellant was not in fact in possession of the suit plot and that he had let out the premises to third party. 3 4. Faced with this situation, learned counsel appearing for appellant states that the appellant has taken away from him the papers yesterday only. No such excuse can be accepted at the hearing of the application to which reply is also filed on behalf of the appellant. Assuming for the sake of arguments that the client has taken away the papers yesterday, he could have remained present in the Court ; but he chose to remain absent and also did not engage any other Advocate. No such dilatory tactics can be tolerated on behalf of any party particularly when the party chose to remain absent from the Court. The appellant has to thank himself for the consequences of remaining absent from the Court, that too without engaging any other Advocate. 5. Considering the ruling cited in R. Varadarajan’s case (supra), the party cannot take disadvantage of the interim relief granted on the basis of suppression of material facts as to possession of the suit property in order to reap disadvantage of income out of the property during pendency of the Second Appeal against concurrent judgments. For all these reasons, interim relief granted is hereby stayed. Civil Application is allowed. JUDGE sahare