ash 1 10cas1174and3849.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.1174 OF 2011 AND CIVIL APPLICATION NO. 3849 OF 2010 IN FIRST APPEAL NO.1198 OF 2003 Vithoba Shankar Sangle & Others. .. Applicants. Vs Shevant Abai Govind Sangle & Others. .. Respondents. -- Shri Uday P. Warunjikar for the Applicants. Shri R.M. Hardas i/by Shri P.N. Joshi for Respondent Nos.1 to 4 and 7. -- CORAM ; A.S. OKA, J DATED : 30TH MARCH, 2011 P.C. . Heard learned counsel appearing for the parties. Civil Application No.1174 of 2011 has been filed by the Appellants in the First Appeal. The Appellants are some of the Defendants. Civil Application No.3849 of 2010 has been filed by the original Plaintiffs who are Respondents in the First Appeal. 2. By an order dated 11th June, 2004 passed in Civil Application No.3051 of 2003 this Court granted interim relief subject to compliance with certain terms and conditions. Civil Application No. ash 2 10cas1174and3849.10 2181 of 2009 was taken out by the original Plaintiffs. It was contended in the said Civil Application that the Appellants have not complied with the conditions imposed in order dated 11th July, 2004. The first prayer in the application was for vacating the stay and putting the Plaintiffs in the possession of the suit premises as per their share. In the alternative, the Plaintiffs prayed that the Appellants be directed to pay reasonable amount by way of maintenance or ad hoc amount of damages during the pendency of the Appeal. By an order dated 28th August, 2009, Civil Application No.2181 of 2009 was disposed of. Paragraphs 2 and 3 of the said order read thus:- “2. Thus, the aforesaid order was a conditional order on the appellant depositing certain amounts before the Trial Court within a period of 12 weeks. The order also made it clear that if the amount is not deposited, the stay granted in terms of clause No.3 of the decree would stand vacated. Since this is a conditional order and according to the applicants herein the amount is not deposited, there would be no stay at all. Therefore, the question of vacating a non-existing stay does not arise. 3. The alternative prayer, in my view, cannot be considered at this stage but only when the appeal is heard finally.” 3. In Civil Application No.1174 of 2011, a prayer is made for restoration of the interim relief granted on the ground that in fact the Appellants had complied with the condition in the interim order dated 11th June, 2004. There does not seem to be any dispute that the ash 3 10cas1174and3849.10 Appellants had complied with the order of deposit as per the said order. This fact was not brought to the notice when Civil Application No.2181 of 2009 was decided. In the circumstances, the order dated 11th June, 2004 passed in Civil Application No.3051 of 2003 will have to be restored by continuing the interim relief granted under the said order. To that extent, Civil Application No.1174 of 2011 will have to be allowed. 4. In Civil Application No. 3849 of 2010, the prayer made by the original Plaintiffs is that the Appellants be directed to pay a reasonable amount of maintenance. On 25th October, 2010, this Court passed the following order on the said application. “Heard learned counsel for the parties. On the last occasion this application was adjourned at the request of learned counsel for the respondents. Today the learned counsel for the respondents once again prayed for adjournment. They have not filed any reply to this application. Their appeal is directed against the judgment and decree of partition, whereby 1/10th share is allotted to the applicants. While decreeing the suit the applicants were also held to be entitled for damages of Rs.15000/- each towards their share in lieu of past three years’ income. Keeping that in view, the respondents, i.e. The appellants in the appeal, are directed to deposit Rs.,5000/- each for the applicants per annum from October, 2002 till October 2010 in this court within a period of six weeks from today. Insofar as the amount which is already deposited as per the impugned judgment dated 30.9.2002 is concerned, the applicants are ash 4 10cas1174and3849.10 allowed to withdraw the same unconditionally. The civil application to come up for further hearing after six weeks. Stand over to 6/1/2011.” 5. This Application is opposed by the learned counsel appearing for the Appellants by pointing out that in Civil Application No.2181 of 2009, the same prayer was made as an alternative prayer and by an order dated 28th August, 2009 this Court observed that the alternative prayer made for grant of maintenance will have to be considered only when the Appeal will be heard finally. His submission is that in view of what is stated in the said order dated 28th August, 2009, now it is not open for the Plaintiffs to claim maintenance. 6. I have considered the submissions. It must be borne in mind that by an order dated 28th August, 2009 this Court allowed Civil Application No.2181 of 2009 filed by the Plaintiffs and vacated the interim stay by granting the main prayer made therein. The result of the said order was that the Plaintiffs became entitled to possession of their share. Hence, at that stage, there was no occasion for considering the prayer made in the alternative for grant of interim maintenance and that is the reason for the aforesaid observation in the clause 3 of the said order. 7. Now by reason of restoration of interim relief in the First ash 5 10cas1174and3849.10 Appeal, the situation has drastically changed and as a result of restoration of the interim relief, the Plaintiffs will not be entitled to get possession of their share in the property as per the impugned decree till final disposal of the appeal. The impugned decree passed on 20th September, 2002 directs the Defendants to pay damages of Rs.15,000/- to each Plaintiff towards their share in the past three years’ income. Thus, the finding of the Trial Court is that each Plaintiff was entitled to damages at the rate of Rs.5,000/- per year. The said finding is based on the documentary evidence filed in the suit by a sugar factory regarding the yield from the suit agricultural lands. In the circumstances, the ad-interim relief granted by this Court on 25th October, 2010 directing the Appellants to pay a sum of Rs.5,000/- per year each to the Plaintiffs will have to be confirmed. 8. Hence, I pass the following order. ORDER: (a) Civil Application No.1174 of 2011 is allowed and it is directed that interim relief granted by this Court on 11th June, 2004 in Civil Application No.3051 of 2003 stands restored. (b) Civil Application No.3849 of 2010 is allowed by directing that the Appellants in the Appeal shall pay interim maintenance to each original Plaintiff at the ash 6 10cas1174and3849.10 rate of Rs.5,000/- per year from October, 2002 onwards till the disposal of the Appeal. (c) The Appellants shall deposit arrears from October, 2002 till October, 2010 on or before 31st October, 2011. (d) From the year 2011, the yearly maintenance shall be deposited with the Trial Court on or before 30th April of every calender year till the disposal of the Appeal. (e) The Trial Court shall permit the Plaintiffs to withdraw the aforesaid amounts. (f) The deposit of interim maintenance amount by the Appellant and withdrawal thereof by the original Plaintiffs will be subject to final outcome of the Appeal. (g) There will be no orders as to costs. (h) The Trial Court shall act upon an authenticated copy of this order. ( A.S. OKA, J )