1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.2428 OF 2006 IN FIRST APPEAL ST. NO.10914 OF 2006 Panchlal Musai Vishwakarma ...Applicant. v. Kanaiyalal Musai Vishwakarma @ Kanaiyalal Musai Sutar ...Respondent. Mr. S.H.Bohra, adv. For the Applicant. Mr.Omprakash Pandey I/by M/s.Pandey & Co.adv. For the Respondents. CORAM : J.H. BHATIA, J. DATED : 23rd September , 2009 P.C. 1 Heard the learned counsel for the Parties. It appears that Short Cause Suit No.7363 of 1987 was filed by the respondent for injunction against the present applicant. Both are brothers inter-se. According to the applicant, he was jointly in occupation of the suit premises situated in slum area alongwith the respondent/plaintiff . Notice of motion by the respondent was earlier dismissed. However, on 24th July, 2000 suit came to be decreed ex-parte because the applicant and his counsel for certain reasons could not appear. According to them, they came to know about this judgment long after and the reasons are given in the application. 2 2 With consent of the learned counsel for the parties, subject to the applicant paying cost of Rs.1,000/- to the respondent within one weeks from this date, delay in filing the appeal is hereby condoned. 3 Application stands disposed off. (J.H. BHATIA,J.) 3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL ST. NO.10914 OF 2006 WITH CIVIL APPLICATION NO.5733 OF 2008 WITH CIVIL APPLICATION NO.2429 OF 2006 Panchlal Musai Vishwakarma ...Appellant. v. Kanaiyalal Musai Vishwakarma @ Kanaiyalal Musai Sutar ...Respondent. Mr. S.H.Bohra, adv. For the Appellant. Mr.Omprakash Pandey I/by M/s.Pandey & Co.adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : 23rd September , 2009 P.C. 1 With consent of the learned counsel, delay has been condoned. Appeal be registered. The appellant, who is original defendant, claimed to be in joint possession of the suit premises alongwith the respondent/plaintiff. Respondent had filed Short Cause Suit No.7363 of 1987 for injunction restraining the defendant/appellant from disturbing his possession. However, notice of motion taken out by the plaintiff was dismissed and joint possession was accepted. However when the suit came up for trial, the appellant and his counsel were not 4 present. They could not lead any evidence nor the witnesses examined by the plaintiff were cross-examined. In the result, decree came to be passed against the appellant. The learned counsel for the appellant contends that because of shifting of his office and because defendant is casual labourer, he was not in touch with the advocate, so they could not remain present. Therefore, in this appeal, the learned counsel seeks that matter be remanded back to the trial Court. The learned counsel for the respondent/plaintiff makes a statement that decree of the trial Court has been already executed and in view of that, respondent/plaintiff is in exclusive possession of the premises at present. He contends that he has no objections if the suit is remanded back to the trial Court provided execution of the decree is not reversed at this stage to which the learned counsel for the appellant/defendant agrees. 2 In view of the facts and circumstances with consent of the learned counsel for the parties, appeal is allowed. Impugned judgment and decree are hereby set aside. Short Cause Suit No.7363 of 1987 is hereby remanded back to the trial Court for hearing and disposal afresh after giving opportunity to both the parties to lead the evidence. Parties shall appear before the trial Court on 5th November, 2009 and the trial Court shall endeavour to expedite the hearing and dispose off the same, 5 preferably within four months. It is made clear that as the impugned decree is already executed, effect of that shall not be reversed pending the suit. 3 As the appeal itself is disposed off, Civil Application Nos. 5733/08 and 2429/09 do not survive and stand disposed off accordingly. (J.H.Bhatia, J.)