Bombay High Court

ROHIDAS DAYANAND KAMBLE AND ANR.versusDHONDIRAM SAHDEV KAMBLE AND ORS.

Disposal: Dismissed

Holding

The appellate court's rejection of the Section 28 preliminary objection is upheld; the writ petition is dismissed.

Summary

The petitioners, Rohidas Dayanand Kamble & Anr., filed a writ petition challenging an interlocutory order dated 07.10.2008 that rejected their Section 28 application raising a preliminary objection to the maintainability of Miscellaneous Civil Appeal No. 43 of 2023. They contended that the appeal had been filed without the requisite leave. The underlying dispute arose from R.C.S. No. 42 of 2022, where the petitioner's application was allowed and the defendants' rejected on 14.08.2023, prompting the appeal. The court examined whether the appellate court erred in dismissing the preliminary objection and whether all appellants had locus standi. Finding that the appellate court had taken a reasonable view, the court declined to interfere, dismissed the writ petition, and directed the appellate court to hear the appeal on its merits with an opportunity of hearing. The order thus upholds the appellate court’s decision and dismisses the petition.

Issues considered

Whether the interlocutory order rejecting the Section 28 preliminary objection to the maintainability of Miscellaneous Civil Appeal No. 43 of 2023 was erroneous.
Whether all the appellants possessed locus standi to challenge the order.

Legislation cited

Code of Civil Procedure, 1908 — s. 28

Subjects

preliminary objection
maintainability of appeal
Section 28
locus standi
writ petition
interlocutory order
civil appeal

Judgment

                       1                          80-WP-12750-2025 (C)

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIRCUIT BENCH AT KOLHAPUR
                CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO. 12750 OF 2025

Rohidas Dayanand Kamble & Anr.                     …...Petitioners
     Vs.
Dhondiram Sahdev Kamble & Ors.                     …...Respondents

                          ...
Mr. Shubham Dhenge i/b Mr. Akash Murudkar,               Advocate for
Petitioners.
                           ...

                     CORAM :    SHAILESH P. BRAHME, J.
                       DATE :   5TH OCTOBER, 2026.

ORDER :


.     Heard Mr. Shubham Dhenge, learned counsel appearing for

the Petitioners.


2.    The Petition is directed against, interlocutory the order dated

**07.10.2008**, whereby the Application under Section 28 raising a

preliminary objection to the maintainability of Miscellaneous Civil

Appeal No. 43 of 2023 was rejected. It is submitted that the appeal

has been preferred without seeking any leave.


3.    The Petitioner is the original plaintiff in R.C.S. No. 42 of 2022.

Application Exhibit-5 was preferred by him, whereas Application
                        2                           80-WP-12750-2025 (C)

Exhibit-22 was preferred by the defendants. The Petitioner’s

Application was allowed and the defendants’ Application was

rejected on 14.08.2023. Being aggrieved thereby, Miscellaneous Civil

Appeal No. 43 of 2023 was preferred.


4.       It is not the case that all the Appellants are coming before the

Court for the first time. Some of them have approached the Court for

the first time, as steps were not taken against their predecessors. The

entire appeal cannot be dismissed on the ground of locus standi.


5.       I find that the Appellate Court has taken a reasonable and

plausible view. No interference is called for. The Writ Petition is

dismissed.


6.       The Appellate Court is requested to hear the Miscellaneous

Appeal on merits by extending an opportunity of hearing to the

parties.




                                  [ SHAILESH P. BRAHME J. ]


Suresh

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