(1) SA. 644.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 644 OF 2009 Sanjay S/o Raosaheb Pawar, Aged : 52 years, Occu.: Agri., R/o Sarola (Bk), Tq. and Dist. Osmanabad .. Appellant VERSUS Shivaji S/o Baburao Pawar, Aged : 57 years, Occu.: Agri., R/o. Sarola (Bk), Tq. and Dist. Osmanabad .. Respondent WITH CIVIL APPLICATION NO. 9249 OF 2009 IN SECOND APPEAL NO. 644 OF 2009 Sanjay S/o Raosaheb Pawar .. Applicant VERSUS Shivaji Baburao Pawar .. Respondent Mr. S.S. Choudhari, Advocate with Mr. Y.S. Choudhari, Advocate for the appellant Mr. K.K. Kulkarni, Advocate h/f. Mr. P.P. Patil, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 14TH SEPTEMBER, 2009 ORAL ORDER:- 1] This Second Appeal can be decided at this admission stage. The substantial question of law involved in this appeal is "whether the learned (2) SA. 644.2009 Judge of the first appellate Court, erred in not remanding the case back to the lower Court?" The respondent had filed this suit for injunction and recovery of possession of 30R of land, which according to him belonged to him and was encroached by the appellant. 2] At the trial stage, the appellant appeared but failed to file written statement. With the result, the suit was decreed as prayed for. This time, the appellant got the alarm and he went in appeal. Amongst other things, he sought remand of the case. The learned Judge of the first appellate Court discussed the facts and the evidence and then held that the appellant could not succeed. The learned Judge committed an error while rejecting the appellant’s request for remand of the case. He said "the appellant was found in the habit of prolonging the case and so, if the case was remanded back to the lower Court, there would be no guarantee that the appellant would appear before the trial Court and contest the suit." This reason, is grossly erroneous. The ld. judge could not have guessed as to what would happen after the remand of the case. In case of remand it would be the responsibility of the appellant to oppose the suit after it’s remand. In case he still fails to do so, it would be to his perils. In other words, if after remand, the appellant does not attend the case, the suit would (3) SA. 644.2009 be decreed against him for want of opposition and thereafter, it would be very difficult for the appellant to get such order set aside. 3] The appeal deserves to be allowed only to the extent of remanding the case back. I am purposely not discussing the facts and the disputed questions between the parties for avoiding prejudice. However, indulgence shown to the appellant can not be without condition. In my view, the appellant should be saddled with costs of Rs.10,000/- for this order. On the appellant’s depositing Rs.10,000/- on or before 12.10.2009 in the trial Court, this appeal shall stand allowed and the orders of the Courts below would stand set aside. If the amount is deposited as directed, the same shall be handed over to the respondent immediately. The appellant is further directed to file his written statement on the first date of appearance and shall not seek further adjournment. In addition to this, there shall be order of temporary injunction against the appellant in respect of 2A 10G of land, as described in the plaint. This order shall remain in force till 13.10.2009. The trial Court shall decide the application for temporary injunction de-novo. . If the amount as directed above, is not deposited in the trial Court on the appointed date, the appeal shall stand dismissed. The respondent is (4) SA. 644.2009 given liberty to amend the plaint for including prayer for mesne profits and such other reliefs. 4] The Second Appeal stands disposed of. 5] In view of the disposal of Second Appeal no. 644 of 2009, Civil Application no. 9249 of 2009, seeking stay does not survive and the same stands disposed of. Sd/- (A.V. NIRGUDE, J.) arp