-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 4962 OF 2008 IN CIVIL APPLICATION NO. 3400 OF 2008 IN CIVIL APPLICATION NO. 2384 OF 2008 IN FIRST APPEAL NO. 783 OF 2004 (Vijay Krishnarao Dabli vs. Chandrakant Vinayak Ramekar ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- Smt. A.A. Joshi, Advocate for the applicant. Shri V.A. Dhabe, Advocate for the respondent. ...... CORAM : B.P.DHARMADHIKARI, J. JULY 25, 2008. Heard the learned counsel for parties. The respondent – landlord has moved this application for recalling of order dated 27.6.2008 passed on Civil Application No. 3400 of 2008 on the ground that cheque issued on 28.4.2008 for Rs.3,404/- and cheque issued on 30.6.2008 for Rs.1,702/- both have been dishonoured. While admitting First Appeal filed by present appellant Vijay Dabli, this Court did not grant any interim order. The Division Bench in Letters Patent -2- Appeal protected the possession of present appellant Vijay subject to his depositing an amount of Rs.1,702/- every month and also observing that in case of any two successive defaults, the interim order shall stand vacated. The appellant did not fulfill the condition of deposit and hence in view of peremptory order passed by the Division Bench, said interim protection ceased to operate on 19.12.2005. The appellant then moved Civil Application No.2384 of 2008 in this First Appeal and the Division Bench in Letters Patent Appeal did not take cognizance of such prayer as LPA was already disposed of. After hearing both sides on 29.4.2008, I proposed to protect the possession of the appellant Vijay and further directed him to file private paper book by 15.6.2008 so that the appeal itself could be listed for final hearing on 16.6.2008. It was also observed that if the private paper book was not filed, interim order would stand vacated automatically. On that day, this Court also noticed that Vijay had not deposited amount after July 2007 and though Vijay claimed that he paid amount in December 2007, the said amount was not credited in the account of present respondent. In view of these developments, no interim order protecting the possession was granted. Thereafter Civil Application No. 3400 of -3- 2008 was moved by Vijay for recalling the order dated 29.4.2008 and in view of payment pointed out on 28.4.2008, the possession of the appellant was protected till 16.6.2008. The application was considered again on 20.6.2008 and time to file private paper book was extended till 27.6.2008. On 27.6.2008, after hearing parties, the order was passed and the appellant was permitted time till 11.7.2008 to complete the paper book in view of the difficulties pointed out and appeal was directed to be listed before the appropriate Bench as per roster on 14.7.2008. Thereafter the respondent has filed present Civil Application pointing out that both the cheques i.e. cheque dated 28.4.2008 and cheque dated 30.6.2008 were dishonoured by bankers of Vijay on the ground of insufficiency of funds. The application came to be filed on 17.7.2008 and today the appellant Vijay has filed his reply on affidavit. The appellant has not disputed the fact of dishonour and prayed for opportunity to pay the amount in cash within some time. It was also pointed out that First Appeal itself is fixed for final hearing on 30.7.2008. The fact of dishonour of both the cheques is not in dispute. In fact because of payment pointed out vide cheque dated 28.4.2008, this Court protected the possession of the appellant Vijay. Thereafter the -4- private paper book was not filed within time and this Court had also extended time for that purpose. The cheque deposited on 30.6.2008 has also been dishonoured. In these circumstances, if Vijay wanted to show his bonafides, he should have tendered the money in arrears before the Court to the respondent. However, that is not his effort at all. Not only this, the fact that the appeal itself is fixed for final hearing on 30.7.2008 is also being pointed out. In view of the history pointed out above, I am not inclined to continue protection of possession given to the appellant Vijay on 27.6.2008. If the appellant ultimately succeeds in appeal, he can recover back the possession from the respondent. Civil Application for recalling of order dated 27.6.2008 is accordingly allowed. The order dated 27.6.2008 is hereby withdrawn. JUDGE *GS