1 Kbp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.121 OF 2009 WITH CIVIL APPLICATION NO.549 OF 2009 Sulochana Bapusaheb Desai ..Appellant/Applicant V/s. Bahubali Ramchandra Ghode and others. .. Respondents ..... Mr.S.S.Patwardhan, Advocate for appellant. ..... CORAM : R.Y. GANOO, J. DATE : 9TH JULY, 2009. P.C. 1] In all five persons including present appellant Sulochana instituted Special Civil Suit No.154 of 1989 in the Court of Civil Judge, Senior SA121-09.doc 2 Division, Civil Sangli for partition of the property which is in the name of plaintiff. Learned Civil Judge Senior Division, Sangli, by judgment and decree dated 24 th January, 1994 partly decreed the suit and after fixing the share of parties in the suit issued order for effecting partition. This judgment and decree came to be challenged by three persons namely Bahubali, Usha and Sachin. They were original Defendant Nos. 1 to 3. Such a challenge was put up through Regular Civil Appeal No.231 of 2001 in the District Court at Sangli and the learned Adhoc District Judge-2, Sangli by judgment and order dated 15 th December, 2008 allowed the appeal, set aside the judgment delivered by the learned Civil Judge Senior Division, Sangli and remanded the matter to the trial Court directing that Anant Ramchandra Ghode and Adinath Ramchandra Ghode or their heirs be joined as party defendants and thereafter matter be taken up for hearing for decision on merits. Additional direction was given that if such persons or their heirs are not joined within stipulated time the suit shall stand dismissed. Further direction was given so as to allow the new parties who have joined as party defendants to file their written statement SA121-09.doc 3 and adduce the evidence. This judgment dated 15 th December, 2008 is challenged by Sulochana Bapusaheb Desai who was original plaintiff no.5. 2] Learned Advocate Mr.Patwardhan appearing on behalf of appellant- Sulochana, submitted that if the learned District Judge was of the view that two persons are required to be joined as party defendants and suit is required to be reconsidered again then it was not proper for the learned Judge to record certain findings; and therefore, impugned decree requires reconsideration. 3] I have heard Mr.S.S.Patwardhan, Advocate for appellant and perused the judgment and decree dated 15 th December, 2008. It appears that the learned District Judge was of the view that Ananta and Adinath were required to be joined as party defendants, but they were not joined and he thought it fit to direct the plaintiffs to join those persons as all the persons who are entitled to have share in the property are required to be joined as party in the suit. Once it was decided by learned District Judge SA121-09.doc 4 that two persons are required to be joined as party defendants and suit is required to be considered de-novo, it was not proper for the District Judge to look into the merits of the matter and pass certain observations though those observations do not form part of the decree. If this is so, certainly, those observations made by the learned Adhoc District Judge-2 cannot be taken into consideration after the matter was remanded in the trial court as other wise it would defeat the purpose of remand. 4] There is one more point which just noted to be little improper in as much as learned District Judge observed that if the heirs of Ananta or Adinath are not brought on record within stipulated time then the suit shall stand dismissed. In my view, the learned District Judge should have avoided passing such kind of direction as it would defeat the purpose of entire legal process which was set up in the matter by the plaintiffs; being a suit for partition, to that extent that direction will have to be set aside. SA121-09.doc 5 5] For the reasons mentioned above, Second Appeal can be disposed of by passing following order: i. The judgment and decree dated 15 th December, 2008, by which Anant Ramchandra Ghode and Adinath Ramchandra Ghode or their heirs were ordered to be joined in Special Civil Suit No.154 of 1989, is confirmed. It is reported that both Anant Ramchandra Ghode and Adinath Ghode have expired. Plaintiffs are granted time till 4 th November, 2009 to make such Application, to bring heirs of Anant and Adinath. The direction mentioned in Clause (4) of the order, that if the plaintiffs fail to file application before the trial Court within stipulated time, the suit stands dismissed, is hereby set aside. The observations and findings recorded by the learned District Judge-2 in judgment and order dated 15 th December, 2008 are also set aside. ii. The Special Civil Suit No.154 of 1989 is remanded to the Court of learned Civil Judge, Senior Division, Sangli and it is restored to his file. Upon making an SA121-09.doc 6 application as aforesaid, the learned Civil Judge, Senior Division, Sangli, shall pass the order on the application in accordance with the provisions of law and also decide the suit on merit. iii. If application as aforesaid is not filed on or before 4 th November, 2009 the learned Judge will keep the suit on board on 9 th November, 2009 and pass such orders as may be permitted by the provisions of law. iv. It is clarified that the learned Civil Judge, Senior Division, Sangli, shall decide the matter on its merit and shall not be influenced by order of the learned District Judge-2, Sangli passed on 15 th December, 2009. v. There shall be no order as to costs. Civil Application is disposed off with no order as to costs. [R.Y. GANOO, J.] SA121-09.doc