1 wp898.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.898 OF 1997 1 Ratnakar Narayan Barate 2 Parvatibhai Narayan Barate 3 Laxman Narayan Barate 4 Ramesh Narayan Barate 5 Suresh Narayan Barate ...Petitioners vs. 1 Vinayak Pandurang Paigude (since deceased through L.Rs.) 1-A Mrs.Uma Sanjay Thorate 1-B Mrs.Sunita Madanrao Ingale 1-C Satish Vinayak Paigude 1-D Nitin Vinayak Paigude ...Respondents Mr.Prathamesh Bhargude i/b Mr.A.V.Anturkar for the petitioners Mr.Mandar Limaye for the respondent nos.1-A, 1(C) and 1(D) CORAM :A.S.OKA,J. DATE :DECEMBER 3,2010 ORAL JUDGMENT : 1 The petition is called out for final hearing. I have heard the learned counsel for the parties. After hearing the learned counsel for the parties, this Court was of the view that the finding recorded by the Appellate court on the ground of bona fide need was not satisfactory as the pleadings and material part of the evidence has not been properly considered. The learned counsel for the parties thereafter on instructions of the respective parties stated that an order of remand be passed by setting aside the Judgment of the Appellate Court and the parties may be permitted to lead additional evidence on both the issues for bringing the subsequent events on record. The learned counsel for the petitioners states 2 wp898.sxw that the first petitioner is present in the Court. 2 The request made by the learned counsel for the parties is reasonable. Hence, I pass the following order : i) Impugned Judgment and decree passed by the learned 11 th Additional District Judge, Pune is quashed and set aside and the Civil Appeal no.322 of 1990 is restored to the file of the District Court. ii)The parties are directed to appear before the learned Principal District Judge, Pune on Monday 3 rd January 2011 at 11.00 a.m for the purpose of fixing the schedule of hearing. iii)The learned Principal District Judge may himself take up the appeal for hearing or may assign it to any other Judge as per his convenience. iv)On formal application being made by the petitioners, the learned District Judge will permit the petitioners to adduce additional evidence for bringing on record the relevant subsequent events. It is obvious that even the respondents will be entitled to make such application and the respondents will be entitled to adduce additional evidence for bringing the subsequent events on record. v) The Appellate Court will itself record the evidence and will not pass further order of remand. After recording the additional evidence, the Appellate Court will record the findings on both the points viz. issue of bona fide need and comparative hardship. vi)As decree for possession passed by the Trial Court is being restored, it is directed that the decree for possession shall not be executed till the 3 wp898.sxw disposal of the appeal subject to compliance with the usual terms by the respondents. vii)The appeal shall be decided as expeditiously as possible and in any event before the end of June 2011. viii)All contentions of the parties on merits are kept open. ix)Record and Proceedings be sent back forthwith. x) Rule is made absolute in above terms with no order as to costs. xi)Civil application no.2981 of 2010 does not survive and the same is disposed of. JUDGE