Bombay High Court
Bhushan S/O Assudaram Khubchandani vs Sushilkumar S/O Shivkishanji Agrawal on 29 June, 2018
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Second Appeal No. 98 of 2017
Shri Bhushan s/o Assudaram Khubchandani,
Aged about 51 years, Occu: Business,
Proprietor Globe Trading Company,
C/o House No.130/A Abhyankar Road,
Sitabuldi, Nagpur.
Appellant
(Ori. Resp/Deft)
Versus
Shri Sushilkumar s/o Shivkishanji Agrawal,
Aged about 53, Occ: Business,
Near Day-today Shop, Wardhman Nagar,
Nagpur.
Respondent
(Ori. Appellant/Plaintiff)
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Shri D.J. Sindhu, Advocate for Appellant.
Shri R.M. Sharma, Advocate for Respondent.
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CORAM : A.S.CHANDURKAR, J.
DATE : 29/06/2018.
Oral Judgment :-
1] The learned Counsel for the parties have been heard on the following
substantial question of law.
"Whether the appellate Court while reversing the judgment of the trial
Court has considered the entire evidence on record.?"
Admit.
Heard finally with the consent of the parties.
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2] The appellant is the original defendant in the suit filed by the
respondent herein for possession of house property admeasuring about 1242 sq.ft..
It is the case of the plaintiff that the suit property was initially owned by one
Krishnaji Balaji Bhambhurkar and was occupied by the defendant as a tenant. In
auction proceedings the said house was purchased by the plaintiff and the sale
certificate was issued in his name. After issuing notice to the defendant to hand
over possession, the aforesaid suit came to be filed. In the written statement it was
pleaded that the plaintiff had no title over the suit property and that the defendant
was a tenant of one Smt. Pushpa Kalyani since the year 1996. It was further
pleaded that unless the tenancy was terminated the possession could not be
delivered.
3] The trial Court after considering the evidence on record held that the
suit was not maintainable in absence of the permission from the Rent Controller.
Though the ownership of the plaintiff was held to be proved, the suit came to be
dismissed. The plaintiff filed an appeal which was allowed by the appellate Court.
Being aggrieved the defendant has challenged the aforesaid judgment.
4] It is submitted by the learned Counsel for the appellant that the
appellate Court decided the appeal without considering all relevant material that
was placed on record. Though the finding that the plaintiff was the owner of the
suit property was challenged in the appeal filed by the plaintiff, the appellate Court
failed to take the same into consideration. Merely by observing that a cross-appeal
was not filed the documentary evidence in that regard has not been considered. It
is further submitted that the documents at Exhibits 80/3 and 80/4 indicating that
the defendant was occupying the premises in his own right were also not
considered. He urged that on the basis of the tenancy agreement with original
owner, the defendant was in possession. As the suit was dismissed by the trial
Court, it was not necessary for the defendant to file any cross-appeal and the
findings recorded by the trial Court could be challenged under provisions of
Order-XLI Rule 22 of the Civil Procedure Code 1908. It was thus submitted that as
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a relevant documentary material has not been considered by the appellate Court,
its judgment stands vitiated.
5] Learned Counsel for the respondent supported the impugned judgment.
He submitted that the title of the plaintiff was duly proved before the trial Court as
well as the appellate Court. In absence of any written cross-objection the appellate
Court rightly did not consider the challenge to the findings at the instance of the
defendant. It was not necessary to obtain the permission of the Rent Controller and
the plaintiff was entitled for possession being the auction purchaser. Hence, no
interference was called for.
6] I have heard the learned Counsel for the parties at length and I have
perused the evidence led by them. In support of his defence, the defendant relied
upon various documents including those at Exhibit No. 80/3, 80/4. On the other
hand, the plaintiff relied upon sale certificate issued in the execution proceedings.
The trial Court while dismissing the suit had recorded the finding that the plaintiff
was the owner of the suit property. As the respondent in the appeal, it was open for
the original defendant to challenge the adverse findings recorded by the trial Court
under provisions of Order-XLI Rule-22 of the Code. It was not necessary to file a
cross-appeal as there was no decree passed against the defendant. The position in
this regard is clear from the decision of P.Varadarajulu Vs Agricultural Produce
Market Committee reported in AIR 2004 SC 1989 that was relied upon by the
learned Counsel for the appellant. The appellate Court has reversed the decree
passed by the trial Court but without referring to the entire material on record. It
was necessary for the appellate Court to have considered the entire evidence and
thereafter to have decided the appeal. As it is apparent that the entire evidence on
record has not been duly considered it is found necessary to direct the appellate
Court to reconsider the appeal afresh.
7] Accordingly, the substantial question of law is answered by holding
that the appellate Court has reversed the judgment of the trial Court without
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considering the entire material on record. Hence the following order passed :
O R D E R
1] Accordingly, the judgment in Regular Civil Appeal No. 500/11 dated 6/8/2016 is set aside. The proceedings are remanded the appellate Court for fresh decision in accordance with law.
2] The parties shall appear before the Appellate Court on 23/7/2018. The appellate Court shall decide the appeal expeditiously in accordance with law and without being influenced by any observations made in this judgment.
The Second Appeal is allowed in aforesaid terms leaving the parties to bear their own costs.
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