c.a.969/2009 1 INTHE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.969/2009 IN SECOND APPEAL NO.563/2007 Prithviraj S.Chavan & Anr. Applicants Vs. Pragati V.Gawade & Ors. Respondents Mr.Vaibhav Patankar for Applicant Mr.I.A.Shaikh h/f Mr.S.B.Shetye for Res.1 & 2 CORAM-G.S.GODBOLE,J. DATE - 23rd SEPTEMBER,2011 P.C. . Heard Mr.Patankar and Mr.Shaikh. 2 The service report indicates that the notice issued to Appellant no.1 pursuant to the order dated 28/7/2011 has been duly served. 3 This Civil Application seeks the following two substantive reliefs. (a) The Second Appeal No. 563/2007 which is pending in this Hon’ble Court may be split up in two Second Appeals, one each by Petitioner no.1 and Petitioner no.2 separately ; (b) The Petitioner no.2 may be allowed to implead the Petitioner no.1 as a party Respondent in the split Second Appeal and the Split Second Appeal may be numbered and be heard on merits accordingly; c.a.969/2009 2 4 On 28/7/2011, following order was passed in this Civil Application. 1.This Civil Application has been filed by the Original Appellant No. 2 for splitting up of the Appeal into two second appeals and for transposing the Appellant No. 1 in the Second Appeal as party Respondent. Though the order issuing notice of this Civil Application was passed on 11/2/2011 directing issuance of notice to the Appellant No. 1, the said order dated 11/2/2011 has been recorded in the proceedings of the Second Appeal and not in the proceedings of the Civil Application. Consequently, the notice which has been sent by the Office of the High Court was issued with the title of the Second Appeal and apparently, there is nothing to indicate that copy of Civil Application No. 969 of 2009 has been served on the original Appellant No. 1 in the Second Appeal. Mr. Patankar appearing for the Appellant No. 2 has brought to my notice that actual notice which has been sent by the High Court does mention that the notice was to show cause as to why the Appellant No. 1 should not be transposed as Respondent and hence the Appellant No. 1 did have effective notice. 2. However, since it is claimed by the Appellant No. 2 that there is inter se dispute amongst Appellants, it is necessary to ensure that no further grievance regarding non-service of notice of the Civil Application is made. 3. Hence Rule. Rule made returnable on 26/8/2011. Learned Advocate for the Applicant No. 2 has tendered a spare copy of the Civil Application for service on the Appellant No. 1. The Office is directed to send fresh notice of Civil Application No. 969 of 2009 in Second Appeal No. 563 of 2007 as a court notice. Except the Applicant No. 1 in the Civil Application who is Appellant No. 1 in the Second Appeal, it is not necessary to serve the Rule on any other party as Mr. Shetye already appears for Respondent Nos. 1 and 2. 5 Despite service, there is no opposition from original Appellant no.1. Considering the nature of controversy, though it is not possible to split the Second Appeal into two Second Appeals and prayer (a) cannot be granted, prayer (b) deserves to be granted in the facts and c.a.969/2009 3 circumstances of the case, partly. Hence, the original Appellant no.1 in the Second Appeal is allowed to be transposed as Respondent no.7 in the Second Appeal. 6 Rule made absolute in the aforesaid terms with no order as to costs. 7 Amendment in the title of the Second Appeal and Civil Application 1018/2007 to be carried out forthwith in the course of the day. 8 Since the original Appellant no.1 in the Second Appeal is now transposed as Respondent no.7 and since the notice before admission was issued on 7/8/2007, issue notice of the Second Appeal to Respondent no.7 being original Appellant no.1 now transposed as Respondent no.7, returnable after 8 weeks. 9 A copy of this order shall also be forwarded to the said Respondent no.7 alongwith the Notice. 10 It is needless to state that since Mr.Patankar has continued to appear on behalf of the original Appellant no.2, he does not want to c.a.969/2009 4 appear on behalf of Respondent no.7 in view of the disputes amongst the original Appellants. He would continue to appear only for the original Appellant no.2 who is now sole Appellant in the Second Appeal. The Application is disposed of accordingly. G.S.GODBOLE,J.