ao149.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 149 OF 2010 Bhagirathibai w/o Rakhamaji Vyashe & others .. APPELLANTS. VERSUS Mathurabai w/o Baburao Raut & others .. RESPONDENTS Mr. S. S. Thombre, advocate for the appellants. Mr. K.D. Bade Patil, advocate for respondent nos. 1 and 2. ===== CORAM : R.M. BORDE, J. DATE : 15 th MARCH, 2011. PER COURT : 1 Appellants are raising exception to the judgment and decree passed by the Principal District Judge, Osmanabad on 13-9-2010 in Regular Civil Appeal no. 278/2007. The first appellate court while allowing the appeal has set aside the judgment and decree passed by the trial court in Regular Civil Suit no. 287/91 on 27-10-1997 and remitted the matter back to the lower court for disposal after giving an opportunity of hearing to both the sides. 2 Appellants before the first appellate court / respondents herein ao149.10 2 contended that they were not served with the suit summons and, infact, record in respect of their appearance has been manipulated. It is their contention that fraud has been played by the appellants herein / original plaintiffs and decree has been secured by misleading the court. First appellate court, after considering the contentions raised by the parties was pleased to remit the matter back to the trial court for reconsideration. 3 Mr. Thombre, learned counsel appearing for the appellants has vehemently contended that respondents herein / original defendants were not successful in establishing the allegations levelled by them and as such, it was not open for the first appellate court to remit the matter back to the trial court. It is observed in the judgment delivered by the first appellate court that Part – D file maintained by the trial court has been destroyed and as such there is no record available to verify the contentions raised by the original defendants in respect of service of summons. The fact however, remains that decree has been passed by the trial court in the absence of there being any defence raised by the defendants. 4 Plaintiffs have sought relief in respect of declaration that decree passed in Regular Civil Suit no. 10/1070 is not binding on them. The first ao149.10 3 appellate court has exercised the discretion in favour of defendants in remitting the matter back to the trial court with a view to afford an opportunity of hearing as the defendants did not lead any evidence before the trial court. Discretion exercised by the first appellate court in remitting the matter back to the trial court with a view to extend further opportunity to defendants need not be interfered with while dealing with the instant appeal. Appeal from order is without any merit and therefore stands dismissed. 5 Considering the fact that suit was presented by plaintiffs / appellants herein in the year 1991, it is desirable that the trial court shall make efforts to dispose of the pending suit as expeditiously as possible preferably by the end of October 2011. Record and proceeding be transmitted to the trial court. ( R. M. BORDE ) JUDGE dyb