1 SA546.06 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 546 OF 2006 Anant Hari Ghangarekar & ors. ... Appellants v/s Madhusudan Moreshwar Dandekar & ors. ... Respondents Mr.Gauri Godse for the appellants. Mr.N.V.Bandiwadekar for Resp. Nos.3, 4/1 to 4/4 and 7. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH NOVEMBER, 2011 P.C.: 1. The appeal is directed against the decision in Civil Appeal No.141 of 2002 passed by the Additional District Judge, Raigad. Regular Civil Suit No.148 of 1988 was filed by one Madhusudan against the appellants herein, seeking a temporary injunction in respect of the construction which the appellants had undertaken. The respondents herein were joined as parties to the suit filed by Madhusudan i.e. in R.C.S. No. 148 of 1988 as party defendants in the suit. They were later transposed as plaintiffs. Madhusudan’s suit was 2 SA546.06 dismissed in 1999. 2. The appellants are the original plaintiffs in R.C.S. No. 38 of 2001 filed against Madhusudan and the respondents herein, seeking damages for the loss incurred by them on account of the temporary injunction granted by the Court in the suit filed by Madhusudan. The Civil Judge, Jr. Division, Panvel, by his judgment and order dated 30.4.2002 has decreed the suit. The defendants herein were jointly and severally liable to pay damages to the plaintiffs quantified at Rs.36,000/- and compensation of Rs.12,000/- for the mental agony and harassment faced by the plaintiffs i.e. the appellants herein. Besides this, the Court directed the defendants to pay the cost of litigation quantified at Rs. 5000/- and interest at the rate of 10% per annum from the date of filing of the suit till the recovery of the compensation. 3. Being aggrieved by this decree, the respondents preferred Civil Appeal No.141 of 2002. Undisputedly, Madhusudan died during the pendency of the suit and therefore the appeal was filed only by the respondents who are also the legal heirs of Madhusudan. The respondents contended that Madhusudan had filed R.C.S. No.148 of 1988 in his individual capacity and that they were not responsible 3 SA546.06 for prosecuting that suit. The respondents herein contended that they were not liable to pay any damages to the appellants herein, as the cause of action did not survive after the death of Madhusudan. 4. Ms.Godse, appearing for the appellants contended that the Appellate Court had erred in concluding that the other defendants i.e. the respondents herein were not liable to pay the plaintiffs the damages incurred by them on account of the temporary injunction granted to Madhusudan in his suit. She submitted that the respondents had been transposed as plaintiffs in R.C.S. No.148 of 1988 which was initially filed by Madhusudan and, therefore, they were equally responsible for the loss incurred by the plaintiffs i.e. the appellants herein. 5. On a perusal of the plaint filed in R.C.S. No.38 of 2001 which was numbered earlier as R.C.S. No.181 of 1998, it is apparent that the suit was directed solely against Madhusudan. It is no doubt true that the respondents herein were parties to R.C.S. No.148 of 1988 and that they had been transposed as plaintiffs in that suit. However, that suit was dismissed. The respondents did not care to prosecute the suit. While filing the present suit i.e. R.C.S. No.38 of 2001, 4 SA546.06 the appellants did not consider it necessary to make any allegations against the respondents nor are there any pleadings in the plaint with respect to the loss caused to the appellants on account of any action of the respondents. The contention of Ms.Godse that because the respondents are the legal heirs and claim the property through Madhusudan they would be liable for the loss incurred by the appellants, is untenable. The suit has been filed for recovery of damages against Madhusudan for his acts which caused a to the appellants on account of the temporary injunction granted to him in R.C.S. No.148 of 1998. 5. In my view, the appeal does not raise any substantial question of law which requires interference from this Court. 6. Second appeal stands dismissed. (SMT.NISHITA MHATRE, J.) 5 SA546.06 6 SA546.06