CANDRAKANT S N PEDNEKAR Vs. SHAIKH KASSIM HAIDERALLI

JUDGEMENT

(1.) THE appellant/petitioner seeks the review of my order dated 8-4-1994 in Second Appeal No. 21 of 1993 whereby his appeal was admitted on the substantial questions of law formulated in the memo of appeal although the stay sought for was refused and the ad interim order dated 8-4-1983 was vacated.

(2.) IN the said order this Court had directed the respondent to give an undertaking that in case the appeal was allowed he would vacate the suit premises within a period of two weeks from the date of final decision of the appeal. It so happens that in the last part of this order the Court has added one condition on the admission of this appeal by making it subject to the appellant handing over the possession of the suit premises to the respondent within a week. Shri Talaulikar, the learned Counsel for the appellant/petitioner in this case, has made a grievance against this part of the order as well as against the refusal of the stay. He has submitted first of all that the condition imposed on the admission was wrong and unwarranted because once the appeal had been admitted on the substantial questions of law there was no question of saddling it with any subsequent conditions. No doubt that this submission is correct and deserves acceptance. Although Shri Kolwalkar, learned Counsel for the respondent, has sought to justify that portion of the order, in my view, it was impermissible on my part to practically modify the first portion of my order admitting the appeal with an inconsistent condition making it subject to the appellant vacating the suit premises. It appears to me that there was no need to insert this part of the order because the respondent is always protected against the non-vacation of the premises by the appellant in view of the refusal on the part of this Court to grant to the appellant an ad interim relief and further ordering the vacation of the ad interim relief granted to the appellant on 8-4-1983. This being the position it is clear that the respondent is always free to execute the impugned judgment in case the appellant, inspite the order of this Court refusing to grant him interim relief, is not inclined to vacate the premises pending the final decision of this appeal.

(3.) SHRI Talaulikar has vehemently contended that the refusal of the stay and the vacation of the interim relief is not justified in the facts and circumstances of the case because substantial loss and irreparable damage would be suffered by the appellant and will render this appeal infructuous. I am afraid that it is not open for the learned Counsel to make this submission at this stage when the order was already passed on 8-4-1994 and against that order no review lies because the same was passed in the exercise of the judicial and judicious discretion on the part of this Court. However, I may say that I do not visualize any such type of loss as pleaded by the learned Counsel because once the appellant also has been duly protected in the order under review consequent upon the undertaking which the respondent was directed to give in this appeal to the effect that in case the appeal is allowed he would vacate the suit premises within a period of two weeks from the date of the final decision of this appeal. Reliance placed by the learned appellants counsel on the relevant provisions of Order 41 Rule, 5 of Civil Procedure Code is, in my judgment of no avail and does not take the case any further. All these aspects were considered by me at the time of passing the earlier order dated 8-4-1994 whereby I have refused to entertain the appellants application for interim relief of stay and directed the vacation of the interim order passed in his favour.