1 wp-10324-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10324 OF 2011 Ganpat Babu Naik (deceased) through LRS Taramati Ganpat Naik & Ors. ..Petitioners Vs. Jayshree Ankush Sambhoo ..Respondent Mr. C.G.Gavnekar for the Petitioners Mr. B. G.Tangsali for the Respondent CORAM : R M SAVANT, J. DATE : 12th December 2011 ORAL JUDGMENT 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The short question which arises for consideration in the above Petition is whether the Learned Civil Judge, Junior Division, Alibaug, could have vacated the Order dated 19-8-1999 passed below Exhibit 35 staying the suit in question. 3 It is not necessary to burden this Order with unnecessary facts. Suffice it to say that the Respondent herein is the Original Plaintiff who has filed the suit in question for perpetual injunction in respect of land bearing Gat No.1397 and Gat No.1399 old survey No.346 Hissa No.3, Survey No.347 and Survey No. 462. In the said suit, an application came to be filed by the Defendant for referring the matter to the Mamletdar under Section 70(B) of the Bombay Tenancy and Agricultural Lands Act 1949. The said application came to be allowed by the Order dated 19-8-1999 by the Joint Civil Judge, Junior Division and resultantly the proceedings in Regular Civil Suit No.42 of 1997 came to be 2 wp-10324-11.sxw stayed, pending the answer to the said reference. 4 It appears that the Respondent herein moved an application for vacating the stay vide Exhibit 39 on the ground that since the suit is for simplicitor injunction the decision of the tenancy authorities on the question of tenancy, need not be awaited. The said application Exhibit 39 came to be rejected by the Learned Joint Civil Judge, Junior Division, Alibag, by his Order dated 2-3-2001 by observing that the decision that would be rendered by the Tenancy Court would be helpful in adjudicating the suit which was filed for simplicitor injunction. It appears that after 2001 the matter rested there. The suit had appeared again on 18-10-2011 on which day, as the certified copy of the Roznama produced by the Learned Counsel appearing for the Petitioners discloses the Advocates for both the Plaintiff and the Defendant were absent. The Roznama further discloses that an Order came to be passed vacating the Order passed on Exhibit 35 dated 19-8-1999, thereby vacating the stay on the suit. It is pertinent to note that though the Trial Court has observed that the matter is not pending before the Mamlatdar’s Court, in fact it is pending in revision before the Maharashtra Revenue Tribunal. The reading of the impugned order dated 18-10-2011 discloses that there is no matter now pending before the Mamletdar Court and that since the suit is simplicitor for perpetual injunction, the only requirement for the Plaintiff was to show his possession and therefore, there was no need to stay the suit pending the decision of the Tenancy authorities. 3 wp-10324-11.sxw 5 Heard the Learned Counsel for the parties. 6 In my view, in the light of the first Order dated 19-8-1999, whereby the application filed by the Petitioners for making the reference to the tenancy court came to be allowed and the subsequent order dated 18-10-2011 wherein the application filed by the Respondent herein for vacating the stay came to be rejected. It was not open for the Trial Court to vacate the stay for the reasons mentioned in the Order as for the self same reasons, the earlier application Exhibit 39 had been rejected by the Trial Court by order dated 2-3-2001. It is further required to be noted that the impugned order has been passed in the absence of the parties. The least that was expected was to give opportunity to the parties if the Court was inclined to vacate the stay which was operating since the year 1999. The Learned Counsel appearing for the Respondent herein sought to justify the impugned Order dated 18-10-2011, but I am afraid that the said justification sought to be given was not with any deal of conviction. 7 In that view of the matter, the impugned order dated 18-10-2011 is quashed and set aside and the stay to the suit operating vide Order dated 19-8-1999 would stand restored, pending the decision of the tenancy authorities. 8 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. [R.M.SAVANT, J]