Bombay High Court
Shri Shankar Husen Shende vs Shri Satyawan Shankar Shende on 13 February, 2019
1 J-AO-45-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.45 OF 2018
Shri Shankar Husen Shende,
Aged : 76 yrs. Occupation - Pensioner,
R/o Plot No.75, Navneet Nagar,
Amravati Road, Wadi,
Nagpur - 440023. ... APPELLANT
(Original Plaintiff)
VERSUS
Shri Satyawan Shankar Shende,
Aged - 42 Yrs., Occupation - Service,
R/o Plot No.75, Navneet Nagar,
Amravati Road, Wadi,
Nagpur - 440023. ... RESPONDENT
(Original Defendant)
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Shri S. M. Prasad, Advocate for the appellant.
Shri M. V. Amale, Advocate for respondent-sole.
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CORAM:- ARUN D. UPADHYE, J.
Date of reserving the Judgment : 08/02/2019
Date of pronouncing the Judgment : 13/02/2019
JUDGMENT :
1. Heard. Admit. Heard finally with the consent of the learned counsel appearing for the parties.
2. This appeal is filed under order 43 Rule 1(U) of the Code of Civil Procedure challenging the Judgment and Decree dated 25/06/2018 passed by the learned District Judge-11, Nagpur in Regular Civil Appeal No.378/2015. ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:55 :::
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3. By the impugned Judgment and Decree, learned District Judge, Nagpur has allowed the appeal subject to payment of costs of Rs.10,000/- and set aside the Judgment and Decree dated 29/04/2014 passed by 2nd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.889/2011 and remanded the matter to the learned Trial Court for fresh trial with liberty to both the parties to lead evidence in respect of their respective pleas. Both the parties were directed to appear before the Trial Court on 06/08/2018 with direction the learned Trial Court is also requested to dispose of the suit on merit within nine months from the receipt of record and proceedings.
4. I have heard Shri Prasad, learned counsel for the appellant and Shri Amale, learned counsel for the respondent at length.
5. Shri Prasad, learned counsel for the appellant has submitted that the learned Appellate Court has committed an error while remanding the matter to the Trial Court. The learned District Judge should have recorded the evidence by giving opportunity to the parties for proving alleged documents. He also submitted that the learned District Judge, however remanded the ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:55 ::: 3 J-AO-45-18.odt matter to the Trial Court for fresh trial. He further submitted that the respondent has failed to establish that he was not given proper opportunity in the Trial Court. He himself was negligent and therefore, the matter cannot be remanded to the Trial Court for fresh trial. He also submitted that at the most, matter may be remanded to the District Judge for disposal of the R.C.A. No.378/2015 on merit by giving opportunity to both the parties and appeal, therefore, be allowed.
6. Shri Amale, learned counsel for the respondent has submitted that the party cannot be suffered by negligence of the Advocate. There was no opportunity for the respondent to adduce the evidence in the matter. The learned Trial Court has decided the matter on the basis of evidence adduced by the appellant. The learned District Judge, therefore, was right while remanding the matter to the Trial Court for deciding the same after giving opportunity to both the parties. He also submitted that no prejudice would be caused to the appellant, if the matter is remanded to the Trial Court for decision on merit. The appeal, therefore, be dismissed.
7. After hearing both the sides, I have perused the impugned Judgment and Decree passed by the learned District ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:55 ::: 4 J-AO-45-18.odt Judge-11, Nagpur as well as material placed on record. From perusal of the same, it appears that the appellant/plaintiff has filed a suit for declaration and possession. According to him, he is the owner and possessor of the suit property bearing Plot No.75 situated at Mouza - Wadi, as described in the plaint. According to him, he has purchased the same on 28/06/1977 by registered Sale Deed. He has constructed the house after purchase of the property. The respondent/defendant has illegally occupied the same without having any legal right. It is also contended that the respondent has given threat to him with dire consequences. The appellant therefore, be constrained to issue notice on 08/06/2011 to the respondent to hand over the possession. However, he did not fulfill the same and hence, he filed the suit.
8. The respondent appeared in the suit and filed written statement vide Exh.11 and resisted the claim of the appellant. According to the respondent, the suit property is purchased by the appellant out of funds received from the property sold by his grand-father. According to him, he is in possession of the suit property and having right and the appellant has filed false suit to grab the suit property, the suit be dismissed. ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:55 :::
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9. After framing necessary issues in the matter and after recording the evidence of the plaintiff, the learned Trial Court has decreed the suit by its Judgment and Decree dated 29/04/2014 and directed the respondent to vacate and hand over the peaceful possession of the suit property to the plaintiff, within one month from the date of decree.
10. The respondent being dis-satisfied with the said Judgment and Decree, preferred Regular Civil Appeal No.378/2015 before the District Judge, Nagpur. The learned District Judge, Nagpur in its Judgment and Decree dated 25/06/2018, allowed the appeal and set aside the impugned Judgment and Decree passed by 2 nd Joint Civil Judge, Junior Division, Nagpur and remanded the matter to the Trial Court for disposal after giving opportunity to both the sides to lead evidence in the matter.
11. Feeling aggrieved by the said Judgment and Decree passed by the District Judge-11, Nagpur, the appellant has preferred this Appeal Against Order amongst other grounds mentioned in the appeal memo.
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12. From the aforesaid facts and circumstances of the case, the following points arise for my consideration. I record the findings thereon with reasons as under :-
ISSUES FINDINGS
1. Whether the impugned Judgment No
and Decree dated 25/06/2018
passed by the District Judge-11,
Nagpur in R.C.A. No. 378/2015
requires interference of this Court ?
2. What order ? As per final order.
After considering the submissions of both the sides and on perusal of the record of the case, I am of the considered view that the impugned Judgment and Decree under challenge does not require interference of this Court.
13. From the perusal of the impugned Judgment and Decree and record of the case, it appears that the learned Trial Court has decreed the suit after recording the evidence of the appellant/plaintiff and documents relied by the appellant.
14. It appears that the respondent/defendant has not adduced the evidence in support of the case. The learned District Judge has considered this aspect in his Judgment and observed that the respondent and his advocate were not present on ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:56 ::: 7 J-AO-45-18.odt 16/11/2013, 06/01/2014, 22/01/2014, 17/02/2014 and 01/04/2014, as per the Roznama. The learned District Judge has also observed that the negligence was on the part of Advocate for the respondent and for the same, the party cannot be penalized. No different view could be taken in this matter and therefore, the learned District Judge was justified while remanding the matter to the Trial Court. Admittedly, the dispute between the parties is about the landed property. The appellant is father of the respondent and therefore, for deciding the matter on merit, opportunity will have to be given to the respondent to adduce the evidence in the matter.
15. The submissions put-forth on behalf of the appellant that the learned District Judge could have recorded the evidence in the appeal itself and there was no need to remand the matter to the Trial Court, cannot be accepted.
16. The important document relied by the respondent will have to be proved in the evidence by giving opportunity to both the sides. The document was filed before the Appellate Court with application and said application was treated as application filed under Order 41 Rule 27 of the Code of Civil Procedure. However, the said application was not separately dealt with and ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:56 ::: 8 J-AO-45-18.odt learned District Judge has passed the order to the effect that the same should be considered at the time of final hearing of the appeal. The appeal is finally disposed of and the learned District Judge has remanded the matter back to the Trial Court for deciding afresh by giving opportunity to both the parties. It appears that the respondent has specifically taken the plea in written statement that the appellant has purchased the property out of the sale proceeds of the land sold by his grand-father. The learned District Judge has rightly considered the contention raised before him and allowed the appeal filed by the respondent. It is to be noted that cost of Rs.10,000/- was awarded and statement is made at the bar that respondent has deposited the same before the District Judge, Nagpur.
17. In view of the above facts and circumstances of the case, the impugned Judgment and Decree passed by the District Judge-11, Nagpur does not require any interference of this Court.
18. The learned counsel for the appellant however, relied upon the rulings in the case of Union of India Vrs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148 and in the case of Uttaradi Mutt Vrs. Raghavendra Swamy Mutt, reported in AIR 2018 Supreme Court 4796.
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9 J-AO-45-18.odt In the facts and circumstances of the case, both the rulings are not made applicable in the case at hand.
19. After hearing the respective sides, I am of the considered view that there is no merit in the appeal and same is liable to be dismissed. Hence, I answer Point No.1 in the negative and proceed to pass the following order.
ORDER
I. The Appeal Against Order is dismissed.
II. No order as to costs.
III. Record and Proceedings be sent to the concerned Court immediately.
JUDGE Choulwar ::: Uploaded on - 14/02/2019 ::: Downloaded on - 15/02/2019 01:02:56 :::