1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4560/2011 (DINESH JAGANNATH KHANDELWAL VERSUS KUNDANLAL P. CHHABRIYA & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms A.P. Gupta, counsel for the petitioner. Shri C.S. Kaptan, counsel for the R-3 to 4. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 16 , 2011 . By this petition, the petitioner impugns the order passed by the District Judge, Nagpur on 30.07.2011 rejecting an application filed by the petitioner to rehear Exhibits 23 and 24, which were rejected by the first appellate Court at the time of deciding the appeal on 29.09.2010, before its remand. The respondents had filed a suit against the petitioner for eviction and possession. The suit filed by the respondents was dismissed. The respondents preferred an appeal before the first appellate Court and the same was allowed by the judgment on 29.09.2010. In the first appeal, the petitioner had moved two applications at Exhibits 23 and 24. By one of the applications, the petitioner had sought the appointment of a commissioner to examine the suit property and the structure. By the second application, the petitioner had filed the interrogatories. Both these applications were considered at 2 the time of hearing of the appeal on merits and were dismissed by reasoned order in the judgment dated 29.09.2010. The petitioner preferred Writ Petition No.178/2011 against the judgment dated 29.09.2010 and this Court quashed and set aside the judgment dated 29.09.2010 and remanded the matter to the first appellate Court to decide the issue of bona fide need by also considering the stage at which the bona fide need surfaced and the circumstances in which it was pleaded before the trial Court. When the matter went to the first appellate Court on remand, the petitioner again moved a fresh application at Exhibit 38 for reconsideration of the applications for appointment of Commissioner and the interrogatories, which were rejected by the first appellate Court at the time of rendering the judgment dated 29.09.2010. The first appellate Court by the impugned order dated 30.07.2011 rejected the application at Exhibit 38 on the ground that the High Court had remanded the matter for deciding only the issue of bona fide need along with the two other points, on which the matter was remanded. The order dated 30.07.2011 is impugned in the instant petition. On hearing the learned counsel for the parties and on perusal of the impugned order as also the judgment passed by the first appellate Court on 29.09.2010 and the judgment passed by this Court on 19.01.2011 in Writ Petition No.178/2011, it appears that the first appellate Court was justified in rejecting the application at Exhibit 38. The first appellate Court had, by several reasons recorded in writing, while rendering the judgment dated 29.09.2010, dismissed the applications filed by the petitioner for appointment of the 3 Commissioner and for interrogatories. The judgment dated 29.09.2010 was challenged by the petitioner by filing Writ Petition No.178/2011. The counsel for the petitioner had argued only two points before this Court in Writ Petition No.178/2011 viz. that, the first appellate Court had not considered the question about the stage at which the bona fide need surfaced and the circumstances in which it was pleaded. Since the counsel for the respondents was not able to point out to this Court that these questions were indeed dealt with, by the first appellate Court while deciding the first appeal by the judgment dated 29.09.2010, this Court quashed and set aside the judgment dated 29.09.2010 and remanded the matter to the first appellate Court to decide the issue of bona fide need by considering the two aspects, which were not considered by the first appellate Court. In this background, merely because the judgment dated 29.09.2010 was set aside by this Court by the judgment dated 19.01.2011, it cannot be said that the petitioner should be granted a fresh opportunity of prosecuting the applications at Exhibits 23 and 24 and that the first appellate Court ought to have decided the same afresh. Since the judgment passed by the first appellate Court on 29.09.2010 was set aside with a view to remand the matter for considering the issue of bona fide need by considering the two aspects, which were not considered by the first appellate Court, the first appellate Court rightly observed in the impugned order dated 30.07.2011 that the High Court did not intend that the two applications at Exhibits 23 and 24 should be re-decided on remand. 4 In the facts and circumstances of the case, no infirmity is found in the impugned order passed by the first appellate Court on 30.07.2011 and the same needs no interference in exercise of the writ jurisdiction. Hence, for the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE