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The appeal may be withdrawn with liberty to file a declaration suit, and the appeal stands disposed as withdrawn.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 Consequently, the second appeal was disposed as withdrawn and the interim application was also dismissed, without addressing the substantive merits of the original dispute.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- Can a second appeal filed under Section 100 CPC be withdrawn after filing?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
- Code of Civil Procedure, 1908 — s. 100
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.
VRJ 1 of 3
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
VRJ 2 of 3
34-sa168-2025.docx
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.)
VRJ 3 of 3
Checking your session…