Bombay High Court
PARIMAL SAHAKARI GRUHANIRMAN SANSTHA MARYADIT, SHRIRAMPUR THROUGH ITS CHAIRMAN RAMESH G. KOTHARIversusOSMAN SAYYAD DASTGIR
- Disposal
- DISPOSED OFF
- Bench
- SHAILESH P BRAHME
Holding
The remand order is unwarranted and illegal; it is quashed, and the appellate court shall decide the suit on its merits.
Summary
The cooperative society filed a suit under the Maharashtra Rent Control Act, 1999 to evict Usman Sayyad Dastgir. The trial court dismissed the suit, and the society appealed. The appellate court remanded the case back to the trial court, directing the impleadment of a necessary party, Dr. Popatlal Kothari, and a fresh hearing. Both parties contested the remand order, arguing that the appellate court could decide the matter on its merits under Order 41 Rules 24 and 33 of the CPC. The High Court held that the remand was unwarranted, quashed the order, and directed the appellate court to hear the case itself within eight months. Both appeals were allowed, and the decree dated 25‑09‑2018 was set aside.
Issues considered
- Whether the appellate court erred in remanding the matter to the trial court for impleadment of a necessary party.
- Whether the appellate court has jurisdiction to decide the suit on merits under Order 41 Rules 24 and 33 of the CPC.
- Whether the order of remand is illegal and liable to be quashed.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 41 Rule 24, Order 41 Rule 33
- Maharashtra Rent Control Act, 1999
Subjects
- eviction
- rent control
- necessary party
- impleadment
- appellate jurisdiction
- CPC Order 41
- remand
- quash
Judgment
2026:BHC-AUG:3784
(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
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