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Bombay High Court

ANANDNARAYAN PURUSHOTTAM KALWAR DIED AND THEREFORE THROUGH THE LRS OF APPLICANT NOS 2 TO 5versusDEEPAK HARISPRASAD PARDESHI

Disposal
Disposed Off

Holding

The appeal may be withdrawn with liberty to file a declaration suit, and the appeal stands disposed as withdrawn.

Summary

The appellants filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging a judgment that had reversed a dismissal of a suit for possession simpliciter. They sought to withdraw the appeal and instead institute a suit for declaration of their rights over the disputed property. Both counsel accepted that the original suit was for possession simpliciter and that a declaration suit could be filed. The Court, after hearing the parties, granted leave to withdraw the appeal, gave the appellants liberty to file a declaration suit, and ordered that any such suit be decided on its merits. Consequently, the second appeal was disposed as withdrawn and the interim application was also dismissed, without addressing the substantive merits of the original dispute.

Issues considered

  • Can a second appeal filed under Section 100 CPC be withdrawn after filing?
  • May the Court grant liberty to the appellant to file a separate suit for declaration of rights?
  • Do the parties’ contentions remain open for consideration in the prospective declaration suit?

Legislation cited

Subjects

  • Second Appeal
  • Section 100 CPC
  • withdrawal of appeal
  • possession simpliciter
  • declaration suit
  • procedural law
  • Bombay High Court

Judgment

                                                                                 34-sa168-2025.docx

VAIBHAV
RAMESH
JADHAV                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIRCUIT BENCH AT KOLHAPUR
Digitally signed by
VAIBHAV
RAMESH JADHAV
Date: 2026.10.08
20:33:15 +0530


                                            CIVIL APPELLATE JURISDICTION

                                           SECOND APPEAL NO. 168 OF 2025

                      Anandnarayan Purshottam Kalwar
                      Died & Therefore Through Legal
                      Representatives & Ors.                         … Appellants
                                  V/s.
                      Deepak Hariprasad Pardeshi & Anr.              … Respondents

                                                      WITH
                                       INTERIM APPLICATION NO. 2753 OF 2025
                                                        IN
                                          SECOND APPEAL NO. 168 OF 2025

                      Anandnarayan Purshottam Kalwar
                      Died & Therefore Through Legal
                      Representatives & Ors.                         … Applicants
                                  V/s.
                      Deepak Harisprasad Pardeshi & Anr.             … Respondents

                      Mr. Ashutosh M. Kulkarni with Akshay Kulkarni for the
                      Appellants.
                      Mr. Umesh Mankapure with Benazir Jamadar, Trupti Padekar and
                      M. M. Koshti /by Ms. Divya Powar for the Respondents.
                      Mr. Vishalnarayan A. Kalwar, Appellant No.5, is present.



                                                   CORAM        : ASHWIN D. BHOBE, J.

                                                   DATED        : OCTOBER 8, 2026
                      Oral Order:


                      1.    Heard Mr. Ashutosh Kulkarni, learned Advocate for the Appellants and

                      Mr. Umesh Mankapure, learned Advocate for the Respondents.



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                                                               34-sa168-2025.docx


2.     By this Second Appeal filed under Section 100 of the Code of Civil

Procedure, 1908, the Appellants (Defendants) are before this Court, assailing

the Judgment and Decree dated 11th November 2024 passed by the Principal

District Judge, Solapur (“Appellate Court”), in Regular Civil Appeal No. 70 of

2020, by which the Appellate Court reversed the Judgment and Decree dated

16th March 2020 passed by the Joint Civil Judge, Senior Division, Solapur

(“Trial Court”), in Special Civil Suit No. 230 of 2015, by which the Trial Court

had dismissed Special Civil Suit No. 230 of 2015 filed by the Respondent

(Plaintiff).


3.     Mr. Ashutosh M. Kulkarni, learned Advocate for the Appellants, states

that Special Civil Suit No. 230 of 2015, being a suit for simpliciter possession,

does not involve an issue of title. He therefore, on instructions from the

Appellants, seeks leave to withdraw the present Appeal with liberty to file an

appropriate suit seeking a declaration of the Appellants' rights to the suit

property. He requests that all issues and contentions regarding the suit for

declaration that the Appellants propose to file be left open for consideration

before the Court where the suit would be filed.


4.     Mr. Umesh Mankapure, learned Advocate for the Respondents, states

that Special Civil Suit No. 230 of 2015, filed by the Respondent (Plaintiff),

was a suit for possession simpliciter. He submits that the Appellant is always



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at liberty to file a suit for declaration seeking a declaration of his rights. He

submits that if the Appellant proposes to file a suit for declaration, all the

rights and contentions of the Respondent in that suit be left open.


5.    In view of the above statements made by Mr Ashutosh M. Kulkarni,

learned Advocate for the Appellants and Mr. Umesh Mankapure, learned

Advocate for the Respondents, leave is granted to withdraw this Appeal, with

liberty to the Appellant to file a suit for declaration. If such a suit for

declaration is filed by the Appellant, all contentions of the parties remain

open and the suit shall be decided on its merits and in accordance with law.


6.    The Second Appeal is withdrawn without addressing the merits.


7.    In view of the above, Second Appeal No. 168 of 2025 stands disposed

of as withdrawn.


8.    Interim Application No. 2753 of 2025 does not survive and is disposed

of.




                                                  (ASHWIN D. BHOBE, J.)




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