BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 6 OF 2011 Kantabai & Ors. v. Laxmi Ganpati Mali reported in 2006(4) Bom.C.R & Ors.

Learned Counsel appearing for the revision 2 cra6.11 applicants submits that the District Judge-2, Ahmednagar dismissed the appeal holding that Rule 117 of the Maharashtra Civil Services (Pension) Rules, 1982 is applicable in the case of revision applicant No.1. According to learned Counsel for the applicant, under Rule 117 of the Maharashtra Civil Services (Pension) Rules, 1982 if the Government servant was in service on 31-12-1963 and had specifically opted for the scheme of family pension, in that case only the said Rule is attracted. Learned Counsel further submitted that there is no discussion in the judgment impugned in this revision application about whether the husband of applicant No.1 and respondent No.1 was in service on 31-12-1963 and had specifically opted for the scheme of family pension. Therefore, Counsel appearing for the applicants submits that in absence of the said discussion and findings, impugned judgment is not sustainable.

On the other hand, learned Counsel for the 3 cra6.11 respondents raised preliminary objection about the maintainability of the Civil Revision Application relying on the judgment of this Court in the case of Vitthal Ramchandra Mali and others vs. Laxmi Ganpati Mali and others reported in 2006(4) Bom.C.R. 31. According to learned Counsel for the respondents, the appeal is maintainable before the High Court in view of Section 384 of the Indian Succession Act, 1925 and therefore, the Civil Revision Application is not maintainable. He fairly conceded that there is no discussion in the entire body of the judgment of the District Court about whether husband of applicant No.1 and respondent NO. 1 was in service on 31-12-1963 and had specifically opted for the scheme of family pension.

Upon hearing learned Counsel for the applicants and learned Counsel for the respondents, I am of the opinion that in absence of recording finding in the judgment about whether the husband of applicant No.1 and respondent No.1 4 cra6.11 was in service on 31-12-1963 and had specifically opted for the scheme of the family pension, it was not appropriate on the part of the District Court to apply provision of Section 117 of the Maharashtra Civil Services (Pension) Rules, 1982 in the case of the applicant No. 1 herein.

So far the contention of Counsel for the respondents that the Civil Revision Application is not maintainable is devoid of any merits. Against the order passed by the Civil Judge, Senior Division, Shrigonda District Ahmednagar, the appeal was preferred by the applicants herein and after appeal is decided, this Civil Revision Application is preferred. Civil Revision Application is rightly preferred taking recourse to sub section (3) of Section 384 of the Indian Succession Act, 1925. Said contention cannot be accepted.

Taking overall view of the matter, to meet the ends of justice, it would be just and proper 5 cra6.11 to remit the matter back to the Civil Judge, Senior Division, Shrigonda, for fresh consideration, by setting aside the impugned judgment and order.

In the result, the impugned judgment and order is set aside to the extent of claim of applicant No.1 herein. Misc. Application No. 27 of 2006 is restored to its original file.

Civil Revision Application is allowed to above extent and stands disposed of.

Since the Misc. Application is preferred in 2006, the Civil Judge, Senior Division, Shrigonda, District Ahmednagar will decide the application after giving proper opportunity to the parties within four months from the first date of hearing. Learned Counsel for the parties assure this Court that applicant No.1 and respondents will remain present before the Court of the Civil Judge, Senior Division, Shrigonda District 6 cra6.11 Ahmednagar on 21-07-2011. The concerned Court will fix the date of hearing.

It is made clear that the impugned judgment and order of the District Court is set aside qua applicant No.1. So far finding recorded in respect of respondent Nos. 2 and 3 are kept in tact. [S.S. SHINDE, J.] sut/JUL11