SHASHIKANT YESHWANT PAL Vs. TANAJI YESHWANT PAL

JUDGEMENT

(1.) Heard Mr. V. Menezes, learned counsel appearing for the appellants. None for the respondents though served.

(2.) The above appeal came to be admitted by an order dated 20.09.2006 on the following substantial questions of law.

(3.) Mr. V. Menezes, learned counsel appearing for the appellants has pointed out that the learned Judge has relied upon the judgment of the Division Bench of this Court reported in the case of Ramavatar Surajmal Modi V/s Mulchand Surajmal Modi, 2004 AIR(Bom) 212, by misreading the ratio laid down therein wherein it has been clearly held that the powers to be exercised in terms of Order 39 Rule 11 of the Civil Procedure Code are not mandatory but discretionary. The learned counsel further submits that the Division Bench of this Court has held that in order to undo an act committed by the contemnor, the party has to show the prejudice which would cause to him in case such activities are not unsettled. The learned counsel further pointed out that the learned Trial Judge while examining such aspect has taken note of the apology by the appellants and that no prejudice would occasion to the respondents as the renovation of the bathroom could be taken into consideration at the time of the final partition of the house property. The learned counsel further pointed out that the discretion exercised by the learned Trial Judge was in accordance with law and as such there is no reason for the Appellate Court to interfere in such discretion in an appeal preferred by the respondents. The learned counsel further pointed out that the case of the respondents that they were the exclusive owners of the subject property has been rejected by both the Courts and in fact both the Courts have found that the appellants and the respondents are co-owners of the subject property wherein the appellants are entitled to half and the respondents are entitled for the remaining half. The learned counsel further submits that a well reasoned judgment passed by the learned Trial Judge has been unsettled by the Appellate Court on erroneous and vexatious ground. The learned counsel further submits that the counter claim has been dismissed on the ground that the appellants had committed contempt and consequently, the decree of partition granted by the learned Trial Judge has been unsettled. The learned counsel has thereafter taken me through the judgment of the learned Trial Judge to point out that the learned Judge has examined every material aspect to come to the conclusion that the appellants were entitled for decree of partition to get the property divided by metes and bounds. The respondents though served have failed to remain present. On the last couple of dates when the matter was heard, an opportunity was given to the respondents to remain present in Court. It was also brought to my notice that the counsel appearing for the respondents was intimated that the matter was on final hearing board. In such circumstances, as none appeared for the respondents, the matter was heard finally.