Bombay High Court
Mukund Ramchandra Kolapkar vs Kisan Tryambak Gaikwad on 14 August, 2008
Author: S.B. Deshmukh
Bench: S.B. Deshmukh
(1)
SECOND APPEAL NO.1498 OF 2005 WITH
CIVIL APPLICATION NO.9720 OF 2005
Date of decision: 14TH AUGUST, 2008
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.B. DESHMUKH
1. Whether Reporters of Local Papers }
may be allowed to see the Judgment? }
2. To be referred to the Reporter or not }
3.
Whether Their Lordships wish to see
the fair copy of the Judgment?
}
}
4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of }
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat]
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO.1498 OF 2005
Mukund Ramchandra Kolapkar,
Age-52 years, Occ: Business,
R/o-Ashvi Kh. Tq-Sangamner,
Dist-Ahmednagar.
.... APPELLANT.
VERSUS
1) Kisan Tryambak Gaikwad,
Age-48 years, Occ: Agril.
2) Dnyandeo Murlidhar Gaikwad,
Age-47 years, Occ: Agril.
Both R/o-Ashvi Kh. Tq-Sangamner,
Dist-Ahmednagar.
.... RESPONDENTS.
WITH
CIVIL APPLICATION NO.9720 OF 2005
...
Mr.V.J. Dixit Senior Advocate for the
Appellant.
Mr. S.K. Shinde Advocate for the
Respondents.
...
CORAM: S.B. DESHMUKH, J.
DATE : 14TH AUGUST, 2008.
ORAL JUDGMENT:
1. Heard learned Senior Advocate Mr. Dixit for Appellant and learned Advocate Mr. Shinde who appears for the Respondents.
::: Downloaded on - 09/06/2013 13:42:04 ::: 22. This Second Appeal is filed by the original defendant in Regular Civil Suit No. 129 of 2003.
The parties, hereinafter, are referred to their status in Regular Civil Suit No.129 of 2003.
Plaintiff's Regular Civil Suit No. 129 of 2003 has been decreed by the trial court and defendant, his servants, agents, or anybody claiming through him are permanently restrained from causing the obstructions to the peaceful possession of the suit property. This Judgment and decree was passed by the trial court on 5/4/2004. It was assailed by the defendant by filing Regular Civil Appeal No. 35 of 2004. The First Appellate Court, after hearing the parties, dismissed the Appeal filed by the defendant vide its Judgment and decree passed on 14/6/2005. It is this Judgment and decree of the First Appellate Court is challenged by the defendant/ Appellant in this Second Appeal.
3. This Second Appeal was listed for admission before this Court and after hearing the parties, this Court has admitted the Appeal by its Order passed on 19/1/2006 on two points/ grounds. These are reproduced herein below:-
::: Downloaded on - 09/06/2013 13:42:04 ::: 3"(i) Whether the trial court committed error in not hearing R.C.S. No.129/2003 and R.C.S. No. 130/2003 together?
(ii) Whether it is a fit case to remand the matter to the trial Court for hearing both the suits together?"
4. Since the Appeal is already admitted and now I have heard ig for final hearing, I am restricting this Order to those two grounds/ points on which this Court has admitted the Second Appeal. For this reason, I am not adverting to description of property and various contentions of the parties.
5. The pleading of the party is material and important in civil proceedings. Term 'pleading' is defined in Order VI Rule 1 of the Code of Civil Procedure. Plaint shall mean pleading of the plaintiff and written statement shall mean pleading of the defendant. Parties to the Suit are expected to plead material facts and not evidence as provided in Order VI Rule 2 of the ::: Downloaded on - 09/06/2013 13:42:04 ::: 4 Code of Civil Procedure. In a given case the defendant may not be knowing certain circumstances or facts. In that contingency, such defendant and even if plaintiff in a given case, is not aware of some circumstances in the case, such parties i.e. plaintiff and defendant, may resort to the interrogatories provided under Order 11 of the Code of Civil Procedure. Notice of documents can be given, if necessary and party possessing the document may be compelled to produce on record , with the aid of the provisions of the Code of Civil Procedure and mechanism provided thereunder and by the orders of the Civil Court. Thus, parties have to plead their case or stance in their pleadings. It is this pleading which is to be supported by the parties while leading oral or documentary evidence. Parties cannot travel beyond their pleadings. Even if parties adduced oral evidence besides their pleadings, such evidence cannot be considered by the Courts and Courts have to ignore such evidence, which is not in consonance with the pleadings. In short, pleading is a foundation of the stance taken by the party in a Civil Suit. The pleadings of the party also is required to be considered by the trial court under Order 14 of the Code while ::: Downloaded on - 09/06/2013 13:42:04 ::: 5 framing the issues. The trial court has to settle the issues and in view of the issues settled by the Court, parties are put on notice to lead the evidence. The importance of the pleadings is considered by the Supreme Court (See See State Bank of India v/s. Mr. S.N. Goyal, 2008 A.I.R. S.C.W. Page No.4355).
6. The learned counsel Mr. Dixit, has invited my attention to the copy of the written statement filed by the defendant in Regular Civil Suit No. 129 of 2003.
ig From this copy of the written
statement, Mr. Dixit, has pointed out the fact of
pendency of Regular Civil Suit No. 130 of 2003.
7. After denial in the written statement,
defendant has pleaded his own case i.e. purchase
of the property by the defendant. To illustrate
the property which is purchased by the defendant,
he has annexed the copy of the rough sketch along
with the written statement. The property which is
purchased by the defendant, is shown in yellow
colours in the map annexed with the written
statement. It appears that the property purchased
by the defendant is part of Gat No.6. Location of the property purchased by the defendant is also ::: Downloaded on - 09/06/2013 13:42:04 ::: 6 specifically shown in this rough sketch/ map.
Regarding pendency of the Regular Civil Suit No. 130 of 2003 filed by the defendant, in paragraph A-11 of the written statement, it is stated by the defendant that the defendant has filed Regular Civil Suit No.130 of 2003 in the Court for declaration and cancellation of the sale deed of the present plaintiff. In paragraph A-14 of the written statement, it is requested that Regular Civil Suit No. 129 of 2003 and defendant's Regular Civil Suit No. 130 of 2003 should be tried together.
ig It is also requested that the
Court to take appropriate action for trying these
two Suits together. This written statement seems
to have been filed on 10/11/2003.
8. Mr. Dixit, learned counsel has also
invited my attention to the Memo of Appeal, which
is on record. It is not in dispute that defendant
in the case on hand, was appellant before the
First Appellate Court in Regular Civil Appeal No.
35 of 2004. Ground No. XXII in the Memo of the
Appeal filed by the defendant i.e. Regular Civil
Appeal No. 35 of 2004 reads thus:-
"The pleading in the suit No. 130 of 2003
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7
was not considered by the learned lower
court along with the written statement."
. In paragraph 3 of the Memo of the Appeal of Regular Civil Appeal No. 35 of 2004 it has been stated by the appellant (defendant) that:
"the present appellant filed Civil Suit bearing No. 130 of 2003 before the 2nd Joint Civil Judge, J.D., Sangamner along with an application for injunction against the present ig respondents and Bhadakwad family. The court was pleased to pass an injunction against the respondents not to disturb the possession of appellant over Gat No. 6/2/1. On the same day, the suit bearing R.C.S. No. 129 of 2003 was filed by the present respondents against which this appeal is going to file."
. In ground No.VI it has been stated by the appellant therein in Regular Civil Appeal No. 35 of 2004 that the trial court ought to have held that the present appellant had purchased 1 R land/ plot from Namdeo on 31/12/1985, specifically North-West side of Gat No.6 under the head of Gat ::: Downloaded on - 09/06/2013 13:42:04 ::: 8 No. 6/2/1. At the conclusion of ground No. VII, it is stated by the appellant therein that:
"In Suit No. 130/2003, the boundaries are going to correct as per amendment application."
. My attention is also invited to ground No. XVI of the Memo of Appeal in Regular Civil Appeal No. 35 of 2004 wherein statements have been made regarding alleged conspiracy in between Namdeo and Karbhari (brothers ig who were erstwhile owner of entire land Gat No. 6).
9. Mr. Dixit, learned counsel fairly concedes that during pendency of Regular Civil Suit No. 129 of 2003, trial court was not moved by filing application that Regular Civil Suit filed by the defendant is pending in the same court and said Suit to be heard along with Regular Civil Suit No. 129 of 2003. It is not in dispute that Regular Civil Suit indisputably was filed on 31/5/2003 and has been disposed of / decided by the trial court on 5/4/2004. In the premise of these indisputable facts, now I will proceed to consider the submission and point/ ground No. (ii) regarding ::: Downloaded on - 09/06/2013 13:42:04 ::: 9 remand of the matter.
10. Apart from other submissions, Mr. Dixit, learned counsel for the appellant has also urged before me, to resort to Section 151 of the Code of Civil Procedure for remand of the matter i.e. Regular Civil Suit No. 129 of 2003. He has also addressed the Court on Section 105 of the Code.
It is well settled in law that powers under Section 151 of the Code are not separate or codified powers vested with the Courts. Powers vested with the Civil Court are recognized under Section 151 of the Code. This is because, in certain circumstances there may not be a provision under the provisions of the Code of Civil Procedure, for the party concerned. In the absence of the statutory provision, i.e. provisions under the Code of Civil Procedure and in the interest of justice, Court can resort to Section 151 of the Code. I am considering the submission or point regarding remand of the case from the Appellate Court i.e. High Court hearing the Appeal under Section 100 of the Code of Civil Procedure. Look to the Code of Civil Procedure makes it clear that Order 41 Rule 23 provides for remand of the case. It is provided, that where ::: Downloaded on - 09/06/2013 13:42:04 ::: 10 the Court from whose decree any appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit;
and the evidence
ig (if any) recorded during the
original trial shall, subject all just exceptions.
This power is thus, vested with the Appellate Court. Under this provision, it is important that Suit must have been disposed of upon preliminary point by the Court at the first instance i.e. ordinarily the trial court. Another important ingredient is reversal of decree in Appeal, obviously by the Appellate Court and in such contingency, Appellate Court, if thinks fit, by order, remand the case. In the case on hand, such exercise of power was not resorted to by the First Appellate Court when the First Appeal under Section 96 read with Order 41 of the Code was pending. Now this provision still can be ::: Downloaded on - 09/06/2013 13:42:04 ::: 11 considered by this Court since High Court is also the Appellate Court, though has to consider the Second Appeal within the parameters of Section 100 of the Code. In the case on hand, I have not arrived at a conclusion that the decree passed either by the trial court or by the First Appellate Court is to be reversed by this Court.
Considering the fact situation obtaining in the case on hand, in my view, no case for remand under Order 41 Rule 23 of the Code is established.
11. Remand is also provided under Order 41 Rule 23 A of the Code. Here it is provided, where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. It is made clear that in this Order 41 Rule 23 A of the Code, disposal of the Suit by the trial court is not upon preliminary point but is otherwise than on a preliminary point. However, I am not reversing the Judgment and decree of the First Appellate Court, neither I am inclined to direct retrial.
::: Downloaded on - 09/06/2013 13:42:04 ::: 1212. While recording findings on this submission or point, I have also considered provisions laid down under Section 99 of the Code. It is provided under Section 99 of the Code that no decree to be reversed or modified on account of any error, defect or irregularity not affecting merits or jurisdiction. It is further provided under Section 99 of the Code that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. I have perused the Judgments of the trial court as well as First Appellate Court in-extenso.
Both the Courts below have considered the voluminous oral as well as documentary evidence on record. Both the courts are concurring on the point that the vendor of the defendant/ appellant is not examined. The trial court has recorded a finding that the property which is alleged to have been purchased by the plaintiff, is sufficiently identified/ described and document of title/ transfer of property is on record. Location, ::: Downloaded on - 09/06/2013 13:42:04 ::: 13 boundaries and description of the property in the opinion of the Courts below, which is subject matter of Regular Civil Suit No.129 of 2003 and 130 of 2003 are different. So far as remand of the case is concerned, it cannot be ordered on any ground. It is also not submitted by parties to the Appeal that the Civil Court who has decided Regular Civil Suit No.129 of 2003 was not having jurisdiction to decide the Suit at the relevant time. Therefore, there is no case for remand of the matter even on the ground of jurisdiction.
13. Remand of the matter on the ground of any defect or irregularity has also been considered by me. While trying Regular Civil Suit No. 129 of 2003 if Regular Civil Suit No. 130 of 2003 filed by the defendant was pending, it was the bounden duty of the litigant i.e. defendant to move the Court specifically for hearing of the said Suit along with Regular Civil Suit No. 129 of 2003.
Mentioning the pendency of Regular Civil Suit No. 130 of 2003 in the written statement in para A-14, in my view, is callous approach of the defendant.
It appears that the defendant was under the impression that just he has to point out or plead ::: Downloaded on - 09/06/2013 13:42:04 ::: 14 pendency of Regular Civil Suit No. 130 of 2003 and then it was for the Court to pass further orders. It is not possible to approve such conduct of the litigant in a Civil Court, in the facts and circumstances available in the case on hand. In a civil proceedings conduct of the litigant always needs to be considered from the view point of the other party or prejudice which is likely to be caused to the other party. In the case on hand if plaintiff approached to the Civil Court by filing Regular Civil Suit No. 129 of 2003, it is the duty of the Court to consider the grievance raised in accordance with the procedure and provisions of the law. Only because defendant has filed Suit and pointed out in the written statement, the Court is not expected to keep the Suit of the plaintiff without hearing. In my view, therefore, such pleadings of few lines in para A-14, cannot be now resorted to by the defendant seeking remand.
14. Another important aspect is that Section 99 appears in the Code at earlier point of time.
Objective seems to be a caution to the Appellate Courts. It is because, Appellate Court only can ::: Downloaded on - 09/06/2013 13:42:04 ::: 15 order remand of the case. This Section 99 of the Code, therefore, gives caution to the Appellate Court and specifies the grounds under which remand can be ordered by them. Lis pending in the Civil Court must be adjudicated upon by the Court within the reasonable time. From this view point, Code of Civil Procedure has suffered many amendments (Act No.46 of 1999 and Act No. 22 of 2002). Thus provisions laid down under Order 41 Rule 23, 23 A, have to be read and considered in the facts and circumstances obtaining in the case and read with Section 99 of the Code.
ig If these three provisions
and fact situation available in the case on hand
is considered, in my view, remand cannot be
ordered in the case on hand.
15. Mr. Dixit, learned counsel, as noted in
foregoing paragraphs, has resorted to Section 151
of the Code. Since two provisions have been
quoted for remand i.e. Order 41 Rule 23 and Rule
23 A, in my view, it is not a case wherein
inherent power can be exercised for remand.
16. Pendency of Regular Civil Suit No. 130 of 2003 i.e. Suit filed by the appellant/ defendant is not in dispute. I am told by Mr. Shinde, ::: Downloaded on - 09/06/2013 13:42:04 ::: 16 learned counsel, on instructions, that Regular Civil Suit No. 130 of 2003 is still pending in the trial court.
17. For the reasons, in my view, this Second Appeal cannot be allowed on Ground No. (i) and
(ii).
18. Except these two grounds, no other ground is urged before me. This Second Appeal, therefore, being devoid of merit needs to be dismissed.
. The trial court seized with hearing of
Regular Civil Suit No. 130 of 2003 to decide and
dispose of the Suit by the end of this year i.e.
on or before 31/12/2008. Parties to co-operate
for early hearing. No costs.
19. Mr. Shinde, learned counsel for the
respondents, fairly concedes that when the Civil
Application No.9720 of 2005 was taken up for
hearing, order is passed by this Court on
19/1/2006. Execution filed by the respondent
decree holder is pending in the Executing Court.
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17
The stage was putting the Judgment Debtor in civil prison for non compliance of the decree. Mr. Dixit, learned counsel seeks eight weeks time.
Mr. Shinde, learned counsel submits that no case for suspension of the order is made out.
Considering the submissions in my view, eight weeks time can be granted. Order passed by this Court in Second Appeal today, shall stand suspended for eight weeks, meaning thereby decree passed by the trial court in Regular Civil Suit No. 129 of 2003 shall stand suspended for eight weeks.
. In view of the disposal of the Second Appeal, nothing survives in the Civil Application and therefore Civil Application is also disposed of.
. Certified copy is expedited.
[S.B. DESHMUKH]
JUDGE.
asb/u/sa1498.05
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