Judgment
second appea190.09 24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.190 OF 2009
1. Ajay s/o Shripal Jain,
Aged about 53 years,
Occupation Chartered Accountant,
R/o Jatharpeth, Akola,
Taluka and District Akola.
2. Sau. Kiran w/o Arihand Jain,
Age 55 years, Occupation Medical Practitioner,
R/o United States of America.
3. Sau. Charu w/o Uday Mahorkar,
Age about 61 years,
Occupation Medical Practitioner,
R/o Dhantoli, Nagpur.
4. Smt. Pramila wd/o Shripal Jain,
(Since Dead), Represented by Appellant
Nos.1 to 3 as legal representatives. ..... Appellants.
:: VERSUS ::
1. Sanjay s/o Parmeshwar Jain,
Aged about 47 years, Occupation Business,
R/o Jain Nursing Home,
New Sanjivani Medical Stores,
Washim Stand, Akola,
Taluka and District Akola. ..... Respondent.
.....2/-
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Judgment
second appea190.09 24
2
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Shri A.R. Patil, Counsel for the appellants.
Shri A.S. Mehadia, Counsel for respondent.
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CORAM : V.M. DESHPANDE, J.
DATE : NOVEMBER 14, 2017. ORAL JUDGMENT
1. Heard learned counsel Shri A.R. Patil for the appellants and learned counsel Shri A.S. Mehadia for the respondent.
2. On 28.8.2009 this second appeal was admitted on the following substantial questions of law:
"(1) Is the exclusive possession the only criteria to decide whether the occupation is that of licencee or a tenant?
(2) Was it proper on the part of the learned appellate Judge to have said that it was not necessary for him to read the entire evidence in detail particularly when first appeal is on facts?"
3. The present appellants filed a special civil suit .....3/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 ::: Judgment second appea190.09 24 3 against the respondents for possession and recovery of damages. The said suit was contested by the respondents. Various issues were framed by learned Judge of the Trial Court. Plaintiffs examined two witnesses namely Ajay s/o Shripal Jain and Dinkar V. Bunde. The defendant also entered into the witness box. Sanjay s/o Parmeshwar Jain as DW1; Abhay s/o Prabhakar Nimbalkar as DW2; Parmeshwar Gulabchand Jain as DW3; Sk. Rashid Sk. Heusen as DW4; Jugalkishore Ballabhdlal Jaiswal; Sherkhan Sujatkhan; Jagdishchandra Gulabchand Singhai, and Pratapchandra Singhai were examined. The evidences of these witnesses are filed on record. Each of witnesses of either side was thoroughly cross-examined in order to test the veracity of their evidences.
4. Learned Civil Judge Senior Division at Akola vide judgment dated 18.8.2005 decreed the suit and thereby directed that the defendant shall hand over the vacant .....4/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 ::: Judgment second appea190.09 24 4 possession of the suit rooms as described in paragraph No.1 of the plaint to the plaintiffs within a period of four months from the date of order. Enquiry into future mesne profit was also ordered.
5. The defendant being aggrieved by such judgment and decree, preferred Regular Civil Appeal No.109 of 2005 under Section 96 of the Code of Civil Procedure. Various grounds were taken to set up challenge to the impugned judgment and decree of possession. The appeal was heard in detail by the Lower Appellate Court. The Lower Appellate Court also formulated 10 points.
6. With the assistance of learned counsel Shri A.R. Patil for the appellants and learned counsel Shri A.S. Mehadia for the respondent, I have gone through the judgment delivered by the Lower Appellate Court. The Lower Appellate Court has described the facts in the judgment and, thereafter, .....5/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 ::: Judgment second appea190.09 24 5 he has formulated the points. No doubt, the reasoning is also supplemented by the Lower Appellate Court. However, in my view, the present second appeal must succeed on question No.2 that was formulated as substantial question of law on 28.8.2009 inasmuch as learned Judge of the Lower Appellate Court himself has observed in paragraph No.18 of the judgment as under:
"Now, it is not necessary for me to read the evidence of each and every witness in great details."
Not only that, perusal of the impugned judgment shows that there is no application of mind and the evidences of witnesses examined by the parties were not given due weightage also.
7. Learned counsel Shri A.R. Patil for the appellants invites my attention to the law laid down by the Honourable Apex Court in the case of Laliteshwar Prasad Singh and ors .....6/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 ::: Judgment second appea190.09 24 6 ..vs.. S.P. Srivastava (Dead) through legal representatives, reported at (2017)2 SCC 415 in respect of Section 96, Order XLI Rule 31 and Order XX Rule 5. The aforesaid Apex Court's decision has also considered the earlier decision of the Honourable Apex Court.
8. The Honourable Apex Court in the case of Vinod Kumar ..vs.. Gangadhar, reported at (2015)1 SCC 391 in paragraph No.10 of the said judgment has also considered the judgment in the case of Kurian Chacko ..vs.. Varkey Ouseph, reported at AIR 1969 Kerala High Court 316. The Honourable Justice V.R. Krishna Iyer (as his Lordship then was the Judge of the Kerala High Court) also reproduced the observation of the Honourable Justice V.R. Krishna Iyer as under:
"An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present .....7/-::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 :::
Judgment second appea190.09 24 7 case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation."
9. The aforesaid observations are applicable in this case with its full force. Consequently, the second appeal must succeed. Therefore, I answer question No.2 in affirmative that the Lower Appellate Court was duty bound to read entire evidences in details and to deliver its judgment. Since the Lower Appellate Court has failed to evaluate and consider entire evidences of each of the witnesses, the appeal needs to be remitted back to the Lower Appellate Court to decide the same afresh in accordance with law by giving an opportunity of hearing to the parties to the appeal.
10. Consequently, this Court passes the following order:
.....8/-
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1) Judgment and decree passed by learned Principal District Judge at Akola dated 21.6.2008 in Regular Civil Appeal No.109 of 2005 is set aside.
2) Regular Civil Appeal No.109 of 2005 is remitted back to the Principal District Judge at Akola and the learned Judge shall decide the said appeal afresh in accordance with law by giving an opportunity of hearing to the parties to the said appeal.
3) Both the parties agree to appear before learned Principal District Judge at Akola on 8.1.2018.
4) The Registry of this Court is directed to remit back the record immediately.
5) Since the appeal is of the year 2005, the Lower .....9/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:32 ::: Judgment second appea190.09 24 9 Appellate Court shall dispose of the said appeal as early as possible and in any case within a period of one year from the date of appearance of the parties i.e. 8.1.2018. It will be open for the respondents to move an application for Stay of the judgment and decree of the Trial Court and the Lower Appellate Court shall decide the same in accordance with law.
6) Needless to mention that the parties will be entitled to raise additional grounds if they choose to raise.
JUDGE !! BRW !! ...../-
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