WP/7510/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7510 OF 2010 Dwarka Subrao Sonwane Age : 55 Sex : Male R/o Kasbe Tadwale, Tq and Dist. Osmanabad ..Petitioner VERSUS 1.Laxmi Subrao Sonwane Age 45 years, Occ. household and labour, resident of Kasbe Tadwale, Osmanabad 2. The Divisional Manager, Southern Central Railway DRM Office Settlement Section Karnik Branch Solapur 3.The Manager, State Of India Branch Yedsi Dist Osmanabad ..Respondents ... Shri S.S.Jadhavar, Advocate for the petitioner Shri P.M.Kulkarni, Advocate for respondent No.1-Absent, Shri M.N.Navandar, Advocate for respondent No.2 and Respondent No.3 : Served. ... CORAM : A.A.SAYED, J. Dated : 21.12.2010 ORAL JUDGMENT :- 1. Heard learned counsel for the respective parties. WP/7510/2010 2 2. Rule. Rule made returnable forthwith and the petition is taken up for final disposal. 3. On the last occasion i.e. on 9.12.2010, none was present on behalf of respondent No.1. The matter was adjourned till today i.e. 21.12.2010. It was recorded in the order dated 9.12.2010 that today the matter would proceed in absence of learned counsel for respondent No.1 if he is not present. 4. By the present petition, the petitioner has challenged the order dated 29.6.2010 passed by the learned District Judge, Osmanabad in Appeal thereby reversing the order dated 6.2.2010 passed by the trial Court on the application Exhibit 5 of the respondent No.1 rejecting temporary injunction. 5. Brief facts of the case are as mentioned hereinbelow : The petitioner is wife of deceased Subrao who was working with the Indian Railways. He retired from the service in 1996-97 where after, he was receiving pension. He expired on 27.6.2009. Respondent No. 1 thereafter filed a suit being RCS No.337 of 2009 claiming to be the wife of deceased Subrao and sought for declaration that she is the legally wedded wife of deceased Subrao and sought an injunction against the petitioner restraining her from withdrawing the pension amount and also sought an injunction against respondents 2 and 3 from disbursing the WP/7510/2010 3 pension amount in favour of the petitioner. The application being Exhibit 5 seeking temporary injunction in respect of withdrawal of pension was also filed. 6. The learned trial Judge by his order dated 26.2.2010 rejected the application Exhibit 5. Respondent No.1, thereafter, approached the District Court in appeal wherein the impugned order dated 5.3.2010 came to be passed setting aside the order dated 6.2.2010 of the trial Court and granted the injunction sought. 7. During lifetime of Subrao, after he stood retired from service in 1996-97, he was receiving his pension. However, dispute arose after his death on 27.6.2009 inasmuch as the petitioner as well as respondent No.1 claimed to be the wife of deceased Subrao and each of them lay a claim to the pension. 8. It is noticed that the pension payment order of deceased Subrao clearly mentions name of the petitioner in clause (2), wherein details of the family members eligible for family pension in the event of death of the pensioner has been mentioned. In my view, the said document prima facie conveys that deceased Subrao accepted the petitioner as his wife and would be a very strong piece of evidence in favour of the petitioner so as to allow her to continue to enjoy the pension which she was enjoying atleast from the date of death of the WP/7510/2010 4 deceased Subrao. It is an admitted position that the petitioner was receiving the pension after death of Subrao until the order of the appeal court came to be passed restraining the petitioner from withdrawing the pension and also directing respondent No.3 - Bank not to disburse the pension amount to the petitioner till the disposal of the suit. 9. In that view of the matter, I am inclined to set aside the impugned order and allow the petitioner to enjoy the benefit of pension till the disposal of RCS No.337 of 2009. Taking an over all view of the matter, in my opinion, the following order would meet the ends of justice. (1) The impugned order is set aside. The petitioner is permitted to withdraw the pension pending the decision of RCS No.337 of 2009. (2) The petitioner shall file an undertaking in this Court within a period of four weeks from today that she will bring back the amount of pension she has withdrawn in the event of any order to that effect is passed by the Court. (3) Since the appeal Court has already directed the trial Court to decide the RCS No.337 of 2009 'preferably' within six months from the date of order and since the trial has so far not commenced, I, deem it appropriate to direct the trial Court to decide the said suit within a period of six months from today. (4) Respondent No.3 Bank shall allow the petitioner to WP/7510/2010 5 withdraw the pension amount. 10. Rule made absolute in above terms. No order as to costs. ( A.A.SAYED, J.) ... akl