1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 1099 OF 2010 IN SECOND APPEAL NO. 749 OF 2009 Garima w/o Kulbhushan Jain .. APPLICANT VERSUS Chaudhary Fayyaz Qureshi s/o Mohmmed Haji Qureshi .. RESPONDENT Mr. A.S. Bajaj, Advocate for the applicant. Mr. V.J. Dixit, Senior Counsel instructed by Mr. S.S. Kazi, Advocae for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 17th FEBRUARY, 2010 PER COURT : 1 This is an application seeking recall of the order passed by this court on 21st November 2009 whereby this court opined that pending second appeal bearing no. 370/2001 and the instant second appeal be heard together as the dispute which is pending is between same parties and the property involved is also one and the same. 2 The instant second appeal raises challenge to the rejection of an 2 application seeking condonation of delay in preferring first appeal. It is stated that a suit bearing no. 657/2001 claiming recovery of possession was presented by the respondent / original plaintiff against the appellant / original defendants. The suit was not contested and the same proceeded without there being written statement presented on behalf of the defendant. The suit came to be decreed on 30-1-2005. The original plaintiff / respondent herein took out execution of the decree by presenting Regular Darkhast no. 174/2006. The defendant / appellant herein caused his appearance on 7-7-2006. Thereafter he proceeded to present an appeal raising exception to the decree passed by the trial court on 30-11-2005. There occurred delay of about 2 years 2 months and 8 days in presenting appeal, as such, application was tendered seeking condonation of delay. The application came to be rejected by the first appellate court. As such, instant appeal came to be lodged. 3 It is pointed out that in respect of the same property one Khaja Ishaquiddin had presented a suit claiming recovery of possession being Regular Civil Suit no. 903/1987. The suit was dismissed. An appeal presented against the decree passed by the trial court being Regular Civil Appeal no. 325/1993 also came to be dismissed. It is stated that during pendency of the 3 appeal i.e. Regular Civil Appeal no. 325/1993, the respondent in the instant second appeal purchased the property and he stepped into the shoes of her predecessor in title and she thereafter prosecuted the litigation. The appeal came to be dismissed and second appeal raising challenge to the decree passed by the court below is presented and the same is numbered as Second Appeal no. 370/2001 which is already admitted and pending for final disposal. In these circumstances, this court directed clubbing of both the matters together for disposal. 4 Mr. Bajaj, learned counsel for the applicant contends that in the instant matter question involved is in respect of condonation of delay occurred in presenting the first appeal and the matter is not required to be dealt with on its own merit. It is contended that in earlier suit presented by Khaja Ishaquiddin / predecessor in title of the original plaintiff, the suit came to be dismissed on account of want of notice under section 106 of the Transfer of Properties Act. It is contended that the instant litigation is initiated after removing the deficiency and considering all the relevant circumstances, trial court granted decree in favour of the plaintiff. Even assuming that the merit of the controversy is not required to be gone into for consideration of the instant appeal, however, the fact remains that the 4 subject matter of dispute in both the proceedings is one and the same and the parties are also same. In this view of the matter, in order to bring finality to the litigation, it was quite reasonable and proper on the part of this court to direct placing Second Appeal no. 370/2001 alongwith in the instant appeal before one and the same court. Infact, it would facilitate determination of controversy involved in the matter in its proper perspective. Order passed by this court on 27-11-2009 therefore cannot be said to be erroneous or illogical. There is no substance in the application. Application therefore stands rejected. The Registry is directed to take proper steps for observance of order dt. 21.11.09. Stand over to 3 rd March, 2010. ( R. M. BORDE, J.) dyb/office/ca1099.10.odt