IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.365 OF 2010. (BABURAO ATMARAM BHELAVE THR. VATSALABAI..VS..PANDURANG ATMARAM BHELAVE) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M.Pande, Advocate for Appellant. Mr. S.G.Chopkar, Advocate for Respondent. CORAM : SMT. VASANTI A. NAIK, J. DATED : OCTOBER 04, 2010. Heard the learned counsel for the parties. 2. The appellants are the original defendants. A suit was filed by the plaintiff for a declaration that he had a easementary right to use the pathway (suit-way) and the defendants were making construction over the pathway. The plaintiff sought a mandatory injunction to remove the construction on the common way which was the approach way to the well. The plaintiff and the defendant No.1 are the real brothers whereas the defendant No.2/ appellant No.2 is the son of the defendant No.1. 3. The defendants denied the claim of the plaintiff and also denied that there was a common pathway. According to the defendants, the plaintiff had no right to claim injunction on the joint family land in regard to the right of way. It was denied that the plaintiff had a right to use the pathway as easement of necessity. The defendants pleaded that they were in exclusive possession of the pathway as well as court yard. They prayed for the dismissal of the suit. 4. The trial Court, on an appreciation of the evidence on record, held that deceased Atmaram, the father of the plaintiff and defendant No.1, had kept an open plot. The Court held that the plaintiff had succeeded in proving that the defendant intended to close the ancestral way through the open land and were thus, entitled to a decree of permanent injunction. The trial Court held that during the pendency of the suit in the year 1994 and thereafter the defendants illegally carried out the construction on the suit way and hence, the plaintiff was entitled to a mandatory injunction directing the defendants to remove the said illegal construction on the pathway. The first appellate Court confirmed the findings recorded by the trial Court. 5. Shri Pande, the learned counsel for the appellants submitted that the appellant No.1 was suffering from cancer and was required to undergo continuous treatment and was, therefore, unable to attend the Court. According to the learned counsel for the appellants, it is stated in the affidavit filed before the first appellate Court that though the instructions were given to the counsel for the appellants by the appellant No.1, the counsel for the appellant had wrongly filed a no instructions pursis before the trial Court when the matter was closed for judgment. It is stated in the affidavit filed before the first appellate Court that the learned counsel for the appellant did not appear before the Court on 07.09.2000 and 21.09.2000 for cross-examining the witnesses examined on behalf of the plaintiff and this has caused a serious prejudice to the defendants. It is also stated in the affidavit that though there was some suffering to the appellant No.1 in the year 1999, the treatment of the appellant No.1 commenced in November, 2000. The learned counsel for the appellant relied on the judgment reported in 2005(1) Mh.L.J. 651 to submit that this Court has deprecated the practice of the Courts of discharging the Advocate on mere filing of no instructions pursis. 6. The learned counsel for the respondent supported the judgments passed by both the Courts and submitted that it is apparent from the record as well as the Roznama that none of the defendants/appellants were present before the Court for a couple of years. In fact, according to the learned counsel for the respondent, the counsel for the appellants was present before the Court on most of the occasions. The learned counsel for the respondent submitted that the 'No Instructions Pursis' was submitted by the appellants' counsel when the matter was fixed for judgment and therefore, there was no question of discharging the counsel for the appellants from the matter in question. The learned counsel for the respondent submitted that ample opportunity was granted to the defendants to conduct the case and it is also apparent from the affidavit filed by the defendants before the first appellate Court that the defendant No.1 was admitted in the hospital for the first time in November, 2000 after the judgment was delivered by the trial Court on 12.10.2000. The learned counsel for the respondents submitted that this is a case of sheer negligence where both the appellants had failed to present themselves before the trial Court and there was no alternative for the Court but to proceed with the case without cross-examination of the plaintiff's witnesses and the oral evidence on the part of the defendants. 7. On hearing the learned counsel for the parties and on perusal of the judgments passed by both the Courts, it appears that no substantial question of law arises for determination in this second appeal. It is considered by the first appellate Court that the record indicates that the appellant No.2/defendant No.2 was also major and could have attended the Court proceedings. The Court further observed that the defendants were represented by four lawyers and Mr. Sule, who had filed No Instructions Pursis when the matter was fixed for judgment was only one of them. The Court observed that there was hardly any reason for defendant No.2 for not attending the Court proceedings and there was gross negligence and mistake on the part of the defendants / appellants. The first appellate Court rightly held that the judgment reported in 2005 (1) Mh.L.J. 651 could not have been applied to the facts of this case as there were three other Advocates who had filed their Vakalatnama on behalf of the appellants. Moreover, in this case, No Instructions Pursis was given when the mater was fixed for judgment. 8. It appears that the arguments were also advanced on behalf of the defendants by the counsel before submission of the No Instructions Pursis. The affidavit filed by the appellant No.2 before the first appellate Court shows that the defendant No.1 was in the hospital and was taking treatment since November, 2000 and the judgment was rendered by the trial Court in October, 2000. The reasons stated in the affidavit for not attending the matter by both the appellants does not appear to be correct. Both the Courts, on appreciation of the evidence on record, have categorically held that the plaintiff had succeeded in proving the case. 9. The findings recorded by both the Courts are pure findings of facts which do not give rise to any substantial question of law. The Second Appeal, therefore, fails and is dismissed with no order as to costs. JUDGE RR.