1 S.A.No.369/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.369 OF 2010. Kantabai Shriram Bangar, Age 40 years, Occ.Household, R/o Narayan Nagar, Hingoli, Tq. and Dist.Hingoli. ... Appellant. Versus Nandkishor Ratanlal Mantri, Age 36 years, Occ.Business, R/o Narayan Nagar, Hingoli, Tq. and Dist.Hingoli. ... Respondent. ... Mr.U.V.Jawalikar, advocate for the appellant. Mr.G.C.Navandar, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 11.04.2011. ORAL JUDGMENT : 1. This is an appeal by the original defendant. The present Respondent/original plaintiff had filed a suit seeking directions 2 S.A.No.369/10 against the defendant to remove the unauthorised construction over a plot i.e. two pillars and eight steps. So also sought injunction restraining the defendant from carrying out any unauthorised construction over the open space. The trial Court decreed the suit. The defendant preferred appeal. The appellate Court dismissed the appeal, confirming the judgment and decree passed by the trial Court. Being aggrieved thereby the defendant has filed the present appeal. 2. Mr.Jawalikar, learned counsel for the appellant contends that in fact, the construction was carried out in accordance with the law and byelaws but the defendant could not get proper opportunity to bring forth before the Court all these aspects. The defendant had engaged the lawyer who filed 'no instructions purshis' and thereafter did not participate in the Court proceedings. Even while filing 'no instructions purshis' the learned advocate did not inform the defendant. As such the defendant could not participate in further proceedings. The 3 S.A.No.369/10 defendant was also not keeping good health. Taking into account these facts, prays for remand of the matter. 3. Per contra, Mr.Navandar, learned counsel submits that it is after eight adjournments were sought, the advocate of the defendant filed 'no instructions purshis'. No explanation is coming forth for non-appearance for the eight dates earlier. The defendant can not take advantage of his own wrong. The learned counsel further contended that on the basis of the available record, the trial Court has properly come to the conclusion. It is not necessary to remand the matter. Even the lower appellate Court has considered this aspect. 4. In light of the above, following substantial question of law arises : "(i) Whether in view of the fact that no instructions Purshis was filed by the advocate of the defendant in the trial Court, the defendant should 4 S.A.No.369/10 have been given opportunity inasmuch as no notice was issued to the defendant by the advocate while passing 'no instructions Purshis'.? 5. Admit. 6. With the consent of the parties, taken up for final hearing. 7. I have heard learned counsels and also gone through the record. It is a fact that earlier opportunity was given to the defendant to adduce evidence but remained absent. The advocate of the defendant thereafter gave 'no instructions Purshis' intimating the Court that he has no instructions in the matter and thereafter did not participate in the Court proceedings. There is nothing on record to show that when 'no instructions Purshis was filed by the advocate, the defendant was given notice by the learned advocate nor after the no instructions Purshis was filed, the Court had issued notice. In that light of the matter, the defendant would not be 5 S.A.No.369/10 in a position to know the further dates. The learned counsel for the appellant relied on the judgment of the learned Single Judge of the Gujarat High Court reported in "1987-GLR-1-356" in a case of "Patel Maganlal Dhanjibhai Godhasara Vs. Patel Laxmidas Naranbhai Kansagara" and another judgment of the learned Single Judge of this Court in a case of "Dattusing Giridhar Sing Rajput Vs. Yeshwant Ramchandra Budukh, Balasaheb Shankarrao Kokate, Ganesh Bhagwant Patil, Vasant Gangadhar Machwe, Hanumantdas Ganeshlal Jambar" reported in 2005(2) Mh.L.J.743. 8. Perusal of both the judgments referred supra, it is manifest that just by filing no instructions Purshis, the same does not discharge the advocate from the case. In fact, when no instructions Purshis was filed by the advocate, he ought to have given notice to the defendant before filing no instructions Purshis or at least thereafter. In the present case the learned advocate for the defendant has not done this exercise. 6 S.A.No.369/10 9. In light of the above, I am inclined to remit the matter back to the trial Court by setting aside the impugned judgment. However, the plaintiff also needs to be compensated. Hence, I pass the following order : 10. The impugned judgment and decree are set aside on condition that the present appellant pays costs of Rs.5,000/- (Rupees five thousand) to the Respondent within a period of two (2) weeks from today. The parties shall appear before the trial Court on 29.4.2011. The trial Court shall give an opportunity to the parties to adduce evidence and shall decide the suit within a period of six (6) months from the date of appearance. The defendant shall cooperate and shall not seek any undue adjournments. 11. I have not opined anything on merits of the matter. 12. The Second Appeal is disposed of 7 S.A.No.369/10 accordingly with no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa36910