1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.139 of 2009 1. Bhaga Dagadu Wakchaure, Age-76 years, Occu-Agriculturist, 2. Chahabai Bhaga Wakchaure, Age-70 years, Occu-Household, and agriculturist Both are R/o.Vithe, Tq.Akole, Dist. Ahmednagar APPELLANTS VERSUS 1. The Senior Record Officer, Record Office, Intelligent Corps, Pin-908793 C/o. 56 APO 2. P.C.D.A. (P) GRANTS-4 Section, Group-3, Allahabad, Uttar Pradesh, 3. The Additional Secretary (M), Ministry of Defence, South Block, New Delhi, For and on behalf of Union of India, 4. Kanchan Sandeep Wakchaure, @ Kanchan d/o.Appasaheb Chaudhari, Occu-Nothing, R/o.Ambhol, Tal.Akole, Dist. Ahmednagar RESPONDENTS 2 Mr.S.T.Shelke, learned counsel for appellants. Mr.N.S.Chaudhary, learned counsel for respondent no.1 to 3 Mr.S.K.Shinde, learned counsel for respondent no.4 (CORAM : A.V.POTDAR, J.) DATE : 22/03/2010 PER COURT : 1. By the present AO, the appellants/original plaintiffs have challenged the order passed below Exh.5 dated 24/09/2009 in Spl.C.No.64/2009 by which the learned Lower Court had passed the order to issue show cause notice to non applicants as to why the temporary injunction should not be granted as prayed for. 2. Admit. Heard finally at the stage of admission itself by consent of the parties. 3. Such of the facts which gave rise to file the present AO can be summarized as follows : One Sandip Wakchaure, the son of appellants and husband of respondent no.4 was serving as a clerk in Armed Forces. It is not under dispute that this Sandip got married with respondent no.4 on 12/04/2008. After marriage, the said Sandip resumed his duties in Armed Forces in Udhampur and while on duty, expired on 12/10/2008. It appears that before the said Sandip resumed his duties, some dispute took place between him and his wife respondent no.4 on some matrimonial cause, due to which respondent no.4 3 started residing with her parents. It further appears that there is an allegation that certain talks of compromise took place in the lifetime of said Sandip which was recorded in the presence of well-wishers of both the sides and accordingly, it is alleged that as per the custom prevailed in the community, that there shall be customary divorce between the 4th respondent and deceased Sandip. It further appears that HMP No.102/2008 was filed jointly by deceased Sandip and respondent no.4 in the court of C.J.S.D.Sangamner, Ahmednagar u/s. 13(b) of The Hindu Marriage Act. During pendancy of the said HMP, certain amount was deposited in the Court by way of permanent alimony to the 4 th respondent. Unfortunately, before this pending HMP result in the decree of divorce or otherwise, Sandip expired and hence no decree came to be passed in the said HMP. As deceased Sandip expired while he is in service, as per rules, the dependants are entitled for service benefits. As those service benefits are with respondent no.1 to 3, which they have to pay within the stipulated period, as per the service rules of the Department. 4. It appears that as the letter was received from the 3 rd respondent by which it was intimated that the respondent no.4 being a wife of their employee, she is entitled for the certain amount, as the service benefits of deceased, which is disputed by the appellants, as according to them, the 4th respondent is divorcee. This issue is taken before the Civil Judge, S.D. In Spl.C.S.No.64/2009, wherein it is prayed that 4th respondent is not entitled for any service benefits. In the said suit, it appears that interim application for injunction was filed by these appellants seeking directions in the nature of 4 prohibitory injunction against respondent no.1 to 3 not to pay any amount of service benefits to respondent no.4, on which the impugned order came to be passed by the Learned Trial Judge on 24/09/2009, which is challenged in this AO. 5. Admittedly, in the order impugned in this AO dated 24/09/2009, rights of the parties are not finally decided or prima facie decided by the Trial Court under which the parties are entitled for service benefits of the deceased or part of the service benefits of the deceased as the impugned order is only in the form of show cause notice. If the rights of the parties are not decided by the Trial Court, there shall not be any challenge to these rights in the AO before this Court. Respondent no.1 to 3 are right within their exercise as they are bound under the rules to pay the service benefits of their deceased employee to the dependant for which they also require directions from the Court. In the premise, as rights of the parties are yet to be decided by the Trial Court, it is proper to remand the matter back to the Lower Court with directions to decide the application at Exh.5 within a stipulated period. 6. Considering this aspect, the order under appeal to be remanded to the Trial Court with following directions : O R D E R 1. AO is allowed. 2. Parties are hereby directed to appear before the Trial Court on 29/03/2010. 5 3. If the respondents have not filed their say to the application at Exh.5 for temporary injunction, then they have to file their say to the injunction application within the period of 1 week thereafter, but on or before 03/04/2010. Learned Trial Court is hereby directed not to give any adjournment, on any ground if prayed for to file say to the Exh.5 application. 4. After the say is filed, the learned Trial Court to decide the application within the period of 1 week thereafter but on or before 09/04/2010. 5. Respondent no.1 to 3 are hereby directed not to disburse the service benefits of deceased Sandip till the application on Exh.5 is finally decided by the Lower Court, as well as the the amount received by respondent no.4 from respondent no.1 to 3 and deposited in the bank not to be withdrawn till the decision on the application of Exh.5. 6. Parties to act on the authenticated copy of this order. (A.V.POTDAR, J.) khs/MAR 2010/ao139-09