sa369of2016 copy 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 369/2016
Appellant : Shobha Pralhad Khadase,
Original Defendant Aged about 49 years, Occu: Household,
on RA R/o Bittiseth Agarwal Layout, Anand
Nagar, Malkapur Akola Tq. and Dist. Akola.
Versus
Respondent : Yamutai w/o Madhukar Malokar,
Original Plaintiff Aged about 68 years, Occ: Household,
on R.A. R/o Bittiseth Agarwal Layout, Anand
Nagar, Malkapur, Akola Tq & Dist. Akola.
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Shri S.A. Mohta, Advocate for the Appellant.
Shri D.S. Patil, Advocate for the Respondent.
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CORAM : A.S.CHANDURKAR, J.
DATE : 12/12/2017
ORAL JUDGMENT :-
1. Notice for final disposal of the appeal was issued by framing the following substantial question of law:
Whether the appellant Court was justified in refusing to grant an opportunity to the appellant to contest the proceedings before the trial Court?
Accordingly the learned counsel appearing for the parties have been heard on the said Substantial Question of Law.
2. The appellant is the original defendant in the suit filed by the ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 ::: sa369of2016 copy 2/6 respondent herein for declaration that the defendant has no right, title and interest in Plot No. 98 as well as for perpetual injunction. According to the plaintiff she was in possession of the suit property since 1992 by virtue of a registered sale deed. According to the plaintiff, though Plot Nos. 97 and 98 were separate, the defendant was trying to interfere with her possession. The defendant, while opposing the application for temporary injunction, filed her reply on Exhibit-18. This reply was subsequently adopted as her written statement. The plaintiff examined herself and her witnesses. That evidence went unchallenged. The defendant did not lead any evidence. The plaintiff subsequently gave up the prayer for declaration and merely sought permanent injunction. The trial Court accordingly, by judgment dated 12/7/2012, partly decreed the suit and restrained the defendant from obstructing the possession of the plaintiff. The appeal filed by the defendant has been dismissed and hence the present second appeal has been filed.
3. Shri S.A. Mohta, learned counsel for appellant, in support of the appeal, submitted that an opportunity was liable to be given to the defendant to contest the suit on merits. The suit was not properly conducted by the defendant's counsel thereby causing prejudice to her case. Various material aspects were suppressed by the plaintiff and therefore she was not entitled for any discretionary relief with regard to ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 ::: sa369of2016 copy 3/6 injunction. The documents to indicate registration of the offence against the plaintiff and other orders passed by the Municipal Corporation were placed on record before the trial Court. However, without considering the same and by drawing the adverse inference against the defendant, the suit was decreed. Though all these points were raised before the appellate Court, they had not been duly considered. He, therefore, submitted that alongwith the present second appeal, the application seeking permission to produce the additional evidence has also been filed.
4. Shri D.S. Patil, the learned counsel for respondent opposed the aforesaid submissions. According to him, sufficient opportunity was granted to the defendant to contest the suit. The trial Court as well as the appellate Court considered the conduct of the defendant and rightly refused to grant further opportunity to her. The decree as passed is on the basis of the evidence led by the plaintiff and her witnesses which went unchallenged. It was, therefore, submitted that no substantial question of law arises for consideration.
5. With the assistance of the learned counsel for parties I have persued the record of the case and I have given due consideration to their respective submissions. Alongwith the suit, the plaintiff filed an ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 ::: sa369of2016 copy 4/6 application for temporary injunction. The reply to this application was filed at Exhibit No.18. Thereafter, this reply was treated as written statement by the defendant. The plaintiff examined herself and her witnesses. These witnesses were not cross examined. The defendant then moved an application below Exhibit-54 for setting aside that order. The defendant was permitted to cross-examine the witnesses, subject to paying costs of Rs. 150/- to the plaintiff. The order dated 17/9/2011 was passed by the trial Court below Exhibit-1 that as the amount of costs were not paid, the defendant had forfeited the right to cross-examine the plaintiff and her witnesses. The plaintiff thereafter moved an application at Exhibit-55 for the appointment of Commissioner. This application was rejected on 17/09/2011. The defendant then moved an application at Exhibit-62 for permission to cross-examine the witnesses and to pay costs as per order passed below Exhibit-54. By order dated 21/11/2011, this application was allowed subject to payment of costs of Rs. 1,000/-. Though the amount of costs was paid, the witnesses were not examined. Thereafter, by another order dated 21/11/2011 passed below Exhibit- 63 despite delay of two and half years, the permission was granted to file the written statement subject to payment of costs of Rs. 400/-. Despite this, the written statement was not filed. Thereafter, the application below Exhibit-66 was moved for amending the Exhibit No.18. This application was allowed, as per the order dated 29/02/2012 ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 ::: sa369of2016 copy 5/6 subject to costs of Rs. 300/-. This right to amend the reply was forfeited on 27/06/2012 as the costs of Rs. 300/- was not paid. Thereafter on 05/07/2012 as the defendant and her counsel were absent, her evidence was closed.
6. The trial Court after considering all these aspects as well as the evidence led by the plaintiff granted relief of permanent injunction. It took into consideration the layout map Exhibit No.48 and held that the Plot No. 97 was shown at the northern side of the Plot No.98. The appellate Court, after reconsidering this evidence, confirmed the decree passed by the trial Court.
7. Thus, from the record it is clear that despite sufficient opportunity being granted to the defendant, she did not contest the suit with required deligence. Merely filing the photo copies of the certain documents could not mean that those documents have to be exhibited. It was for the defendant first to cross-examine the plaintiff and her witnesses and thereafter lead her evidence. Hence, the submission that the trial Court ought to have considered the said documents does not take case of the defendant in further. The first appellate Court has in paragraph 14 of its judgment considered the conduct of the defendant and has thereafter refused to remand the proceedings. It has also ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 ::: sa369of2016 copy 6/6 considered boundaries of the Plot no. 98 and thereafter confirmed the decree.
8. In view of the aforesaid, I find that no error has been committed by either the trial Court or by First Appellate Court while holding against the defendant. The substantial question of law framed is answered by holding that the appellate Court was justified in refusing to grant an opportunity to the defendant to contest the proceedings before the trial Court. As a result of the answer to this question, the appeal is liable to be dismissed. The Second Appeal is, therefore, dismissed. No costs.
JUDGE nandurkar ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 00:54:54 :::