-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 409/2008 Vilas Sitaram Alam - versus- Prakash Prabhakar Tanniwar ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 22, 2009. Heard finally with the consent of Shri S.S. Ghate, Advocate for appellant and Shri R.M.Bomewa, Advocate for Respondent. Perusal of judgment dated 28.06.2007 delivered by the District Judge-I, Chandrapur in Regular Civil Appeal No.164/2005, shows that there is apparent error in it. The judgment is in Marathi and its translation is also placed on record, however, the judgment in Marathi is looked into for the purpose of present hearing. The Lower Appellate Court has framed three issues and answered first two issues in favour of respondent/plaintiff. The third issue was whether ends of justice warrant grant of any other relief and it has been answered in affirmative. In paragraph nos. -2- 9 and 10, the Lower Appellate Court has found that because of his illness, the appellant before it [present appellant and original defendant], could not effectively defend himself before the Trial Court. He was free to move appropriate application under Order 9 Rule 13 before the Trial Court for setting aside the judgment and decree and if the Trial Court found that grant of such liberty was necessary, the trial Court was free to grant that liberty. It is further observed that such liberty is available to the original defendant in law, and therefore, issue no.3 has been answered in affirmative. In paragraph no.10 again the Lower Appellate Court has repeated the same conclusions, but than ultimately dismissed the appeal. It is therefore, apparent that the Lower appellate Court has failed to exercise the jurisdiction available to it to find out whether there were just and sufficient reasons for non appearance and non participation of the defendant before the Trial Court. Advocate Shri Bomewar for respondent/plaintiff sates that after delivery of judgment by Lower Appellate Court, the decree is already executed by the respondent and respondent is in possession. Advocate Shri Ghate, states that there was -3- some delay in filing Second Appeal but decree has been executed after delay is condoned. It appears that delay has been condoned on 14.10.2008 and possession is taken on 18.06.2008. In the circumstances, I find it proper to permit the appellant / defendant to move Trial Court by filing appropriate application under Order 9 Rule 13 of Civil Procedure Code as observed by the Lower Appellate Court. The learned counsel for the respondent/plaintiff has no objection if such application is moved and is expeditiously decided. He however, states that possession obtained by the present respondent should not be disturbed till the adjudication of the Civil Suit, if judgment and decree is set aside thereafter. In the changed circumstances, I find that it will be in the fitness of things to permit the present appellant/defendant to move application under Order 9 Rule 13 of C.P.C. by 28.02.2009 and if such application is moved, the trial Court shall decide the same on its own merits and as early as possible, and in any case by 30.09.2009. It is made clear that if the suit is thereafter restored by setting aside the judgment and decree, the Court below shall attempt to decide the suit itself on merits within further period of one year thereafter. The possession taken by the -4- respondent/plaintiff shall not be disturbed till the adjudication of the Civil Suit and shall be subject to final orders to be passed in said Civil Suit by the Trial Court. In view of above discussion, Second Appeal is disposed of. No cost. JUDGE Rgd.