1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1572 OF 2009 IN FIRST APPEAL NO. 1613 OF 2007 Sanjay Waman Pawar ....Applicant V/s. Satish Waman Pawar ....Respondent ====== Mr.Ashok S.Tanjane, Advocate for applicant. Mr.V.V.Gangurde,Advocate for respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 10TH JULY, 2009. P.C. : 1. This Civil Application is taken out for setting aside the order dated 5th May, 2008 passed in First Appeal and Civil Application NO.2459 of 2007. In the alternative, the applicant seeks a direction to the respondent to pay an amount of Rs. 5,08,000/- to the applicant towards the rent of the premises from the year 1998 till February, 2009 with 12% interest thereon and Rs.8,000/- per month till the disposal of the appeal. The applicant also seeks direction to the respondent to deposit an amount of Rs.6,49,125/- being half-share of the 2 value of the suit property. The application is opposed by the respondent. 2. The parties to the proceedings are brothers. The applicant filed Special Civil Suit No.252 of 2009 against the respondent for partition and possession of half share in the suit property by removing the structure thereon and for recovery of an amount of Rs.2,60,000/- 3. On 27th October, 1994 the parties had jointly purchased the land at plot no.12, Survey No.34/3/1 to 10 admeasuring 253.50 sq.mtrs situate within the jurisdiction of Nashik Municipal Corporation for the sum of Rs.76,000/-. It was agreed between the brothers that a building consisting of ground plus first floor would be constructed thereon with the ground floor to be constructed by the respondent for his exclusive occupation and the first floor by the applicant for his occupation. It is however alleged by the applicant that when the house was being constructed, the respondent made him bear the expenses for construction and the ancillary expenses to the extent of Rs. 2,60,000/-. Thereafter, the respondent starting occupying the premises though there was no completion certificate granted by the Municipal Corporation. He was also totally non-cooperative with the applicant in raising the construction of the first floor. Therefore, the applicant was constrained to file the 3 suit herein asking for partition of the suit property. By the judgment and decree dated 2nd February, 2007 the trial court decreed the suit declaring that both the brothers have half share in the suit land as well as in the constructed property and directed partition of the property through the Court Commissioner. Aggrieved by this decision, the respondent filed the present appeal which was admitted on 5th August, 2008. When the notice of the appeal was received by the applicant, he engaged Smt.Neena Chakravarthy as his advocate and filed vakalatnama on 3rd May, 2008. However when the appeal was taken up for admission on 5th May, 2008 the learned advocate did not appear and the appeal came to be admitted. By the order passed on the Civil Application on the same day, this court stayed only actual division of the property and allowed continuation of other proceedings. 4. Mr.Tajane, the learned counsel for the applicant submits that this order is an ex-parte order and is to the prejudice of the applicant. It is therefore required to be set aside and the Civil Application considered afresh and decided after hearing the applicant. Mr.Gangurde, the learned counsel for the respondent submits on the other hand that the order cannot be said to be an ex-parte order since the notice of the application was served upon the respondent who had engaged 4 services of a lawyer which lawyer failed to remain present in the court. He submits that no case is made out by the applicant for setting aside either the order of admission or the order on the Civil Application. 5. Mr.Tajane submits that the respondent has been occupying the suit property to the exclusion of the applicant thereby depriving him of his right of enjoyment of the suit property. It is not disputed that the suit property was jointly purchased by both the brothers. Mr.Gangurde, the learned counsel for the respondent submits that it was agreed between the two brothers that the respondent would put up his construction of ground floor structure at his own expense and the applicant would raise the first floor thereon at his own expense. This agreement is not disputed by the applicant also. He however contends that the respondent has been causing obstruction to the construction of the first floor in various ways. Ifq that is so, the remedy of the applicant would have been to seek appropriate relief of injunction against the respondent. Considering the facts and circumstances of the case with the admitted position of agreement as regards the structure, I am not inclined to disturb the interim orders passed in the appeal. 6. As regards the alternative prayer sought by the applicant, 5 since the appellant is the joint owner of the suit property, there can be no question of payment of compensation by him. In the circumstances, the Civil Application is dismissed. The hearing of the appeal is already expedited. Despite specific directions dated 5th May, 2008 the applicant is yet to file the paper-book. He shall file his paper-book within a period of six weeks from today. If the paper-book is not filed within the time granted, the appeal shall stand dismissed without any further reference to the court. [SMT.R.P.SONDURBALDOTA, J]