Created by Fuzzy Cloud

Bombay High Court

USMAN SAYYED DASTGIRversusPARIMAL SAHAKARI GRUHANIRMAN SANSTHA THROUGH IT S CHAIRMAN RAMESH GHEWARCHAND KOTHARI

Disposal
DISPOSED OFF

Holding

The remand order is unlawful and is quashed; the appellate court shall decide the matter on its merits.

Summary

The co-operative society filed a suit under the Maharashtra Rent Control Act, 1999 to evict Usman Sayyed Dastgir, which the trial court dismissed. The society appealed, and the appellate court remanded the case back to the trial court to implead a "necessary party" (Dr. Popatlal Kothari) and rehear the suit. Both parties contested this remand, arguing that the appellate court had sufficient material to decide the case on its merits under Order 41 Rules 24 and 33 of the CPC. The High Court held that the remand was unwarranted and illegal, quashed the order, and directed the appellate court to hear the matter afresh, extending a hearing opportunity. Consequently, the judgment and decree dated 25 September 2018 were set aside, and the appeals were allowed.

Issues considered

  • Whether the order remanding the matter to the trial court for impleadment of a necessary party is lawful.
  • Whether the appellate court can decide the suit on merits under Order 41 of the CPC.
  • Whether the judgment and decree dated 25 September 2018 should be quashed.

Legislation cited

Subjects

  • eviction
  • necessary party
  • impleadment
  • remand order
  • appellate jurisdiction
  • Maharashtra Rent Control Act
  • Civil Procedure Code

Judgment

2026:BHC-AUG:3786




                                          (1)                    78 AO 83 OF 2018


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                          78 APPEAL FROM ORDER NO. 83 OF 2018
                                          WITH
                           CIVIL APPLICATION NO. 15126 OF 2018
                                      IN AO/83/2018

                                USMAN SAYYED DASTGIR
                                        VERSUS
            PARIMAL SAHAKARI GRUHANIRMAN SANSTHA THROUGH IT S CHAIRMAN
                           RAMESH GHEWARCHAND KOTHARI
                                         WITH
                          CIVIL APPLICATION NO. 4849 OF 2021
                                   IN CA/15126/2018

             PARIMAL SAHAKARI GRUHNIRMAN SANSTHA MARYADIT, SHRIRAMPUR,
                       THROUGH ITS CHAIRMAN RAMESH G. KOTHARI
                                         VERSUS
                                  OSMAN SAYYAD DASGIR
                                          WITH
                          APPEAL FROM ORDER NO. 27 OF 2021
                                          WITH
                           CIVIL APPLICATION NO. 4850 OF 2021
                                      IN AO/27/2021

            PARIMAL SAHAKARI GRUHANIRMAN SANSTHA MARYADIT, SHRIRAMPUR
                       THROUGH ITS CHAIRMAN RAMESH G. KOTHARI
                                              VERSUS
                                    OSMAN SAYYAD DASTGIR
                                                …
           Mr. Shubham S. Kote h/f. Mr. A. V. Hon, Advocate for Appellant
                                                …

                                      CORAM     : SHAILESH P. BRAHME, J.
                                      DATE      : 28.01.2026

           PER COURT :-
                                      (2)                        78 AO 83 OF 2018


.           Both appeals can be disposed of by common order. The

substantial questions of law were already framed on 09.01.2026.

2.          Both parties are challenging judgment and decree dated

25.09.2018 passed by the District Judge-1, Shrirampur in Regular Civil Appeal

No.72 of 2013 remanding the matter to the Trial Court with a direction to

implead a necessary party and to decide the suit afresh by extending

opportunity of hearing.

3.          Regular Civil Suit No.10 of 2004 was filed by Parimal Sahakari

Gruh Nirmal Sanstha Maryadit (hereinafter referred to as “the co-operative

society), for eviction of Usman Sayyad Dastgir under the Maharashtra Rent

control Act, 1999. The Trial Court dismissed the suit vide judgment dated 30 th

October 2013. Being aggrieved, the co-operative society preferred Regular

Civil Appeal No.72 of 2013. It is observed by lower Appellate Court that

Dr. Popatlal Kothari was a necessary party to whom the plot was allotted by

the co-operative society. Instead of filing suit by him, the Co-operative society

was espousing the cause. The matter was therefore relegated to the Trial Court

by the impugned order to implead him as a party and to decide the suit afresh.

4.          Both parties are unanimous that order of remand is unwarranted

and illegal. The lower Appellate Court could have dealt with the matter on

merits by invoking powers under Order 41 Rules 24 and 33 of C.P.C. In that
                                      (3)                         78 AO 83 OF 2018


view of the matter, it is appropriate to quash the impugned order and relegate

the matter to the lower Appellate Court to decide it on merits.

5.          Independently also, I hold that the Appellate Court has ample

material before it to deal with the matter on merits. It is unwarranted to

relegate the matter to the Trial Court for impleading the necessary party. The

person held to be a necessary party is not comingforth seeking impleadment

or opportunity to lead evidence. The impugned order is, therefore, liable to be

quashed.

6.          Both appeals are allowed. Judgment and decree dated 25.09.2018

passed in Regular Civil Appeal No.72 of 2013 is quashed and set aside.

7.          The Appellate Court shall decide the matters on its own merits

after extending opportunity of hearing and decide the appeals expeditiously

within a period of eight (8) months from today.

8.          Parties shall appear before lower Appellate Court on 09.02.2026.

7.          Civil Applications are disposed of accordingly.



                                                   ( SHAILESH P. BRAHME, J. )
PRW


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.