mca1147.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Misc. Civil Application No. 1147 of 2017
IN
Second Appeal No.233 of 2001
1. Smt. Dwarkabai wife of Govind
Muneshwar,
aged about 47 years,
occupation - Household,
2. Smt. Janabai wife of Yashwantrao
Gaidhane
aged about 53 years,
occupation - Household,
3. Govind son of Sitaram
Muneshwar,
aged about 57 years,
occupation - cultivator,
all residents of Dongargaon,
Tq. Salekasa, Distt. Gondia. ..... Applicants
Versus
1. Tukaram son of Shiva Bahekar,
aged about 68 years,
occupation - Agriculturist,
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mca1147.17
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2. Tikaram son of Shiva Bahekar,
aged about 63 years,
occupation - Agriculturist,
3. Shriram son of Shiva Bahekar,
aged about 57 years,
occupation - Agriculturist,
4. Smt. Tulsabai widow of Shiva Bahekar,
aged about 63 years,
occupation - Agriculturist,
all resident s of Dongargaon,
Tq. Salekasa, Distt. Gondia. ..... Respondents
*****
Mr. A. M. Sudame, Adv., for the applicants.
Mr. Shashikant Borkar, Adv., for respondents.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 06th October, 2017 ORAL JUDGMENT: 01. Admit. Heard finally with consent of counsel for the parties.
02. This is an application seeking review of the judgment dated 9th March, 2016 in Second Appeal No. 233 of 2001 on the ground that ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:55:01 ::: mca1147.17 3 though the said appeal was admitted on substantial questions of law at Sr. Nos. 8 to 12 in the Memorandum of Appeal, while deciding the appeal, those questions were superseded and the appeal was decided on fresh questions of law.
03. It is submitted on behalf of the applicants that as substantial questions of law nos. 8 to 12 had been formulated for deciding the appeal, these questions could not have been re-framed. If the questions were required to be re-framed, an opportunity to the respondents in the appeal ought to have been granted as required by provisions of Section 100 (5) of the Civil Procedure Code, 1908 [for short, "the Code"]. In that regard, the learned counsel placed reliance on the judgment of the Honourable Supreme Court In Sushila Vs. Madankuwar & others [ Civil Appeal Nos. 2568-2569/2017 (Arising out of SLP (C) Nos. 961-962 of 2017) ]; decided o 10th February, 2017. It is submitted that though the applicants were not present when the Second Appeal was heard, it having been heard on substantial questions that they were not aware of, the judgment deserves to be reviewed.
04. Shri S. Borkar, learned counsel for the non-applicants, opposed the application and submitted that the appeal has been ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:55:01 ::: mca1147.17 4 decided by answering substantial questions of law that arose in the appeal. The applicants ought to have challenged this judgment instead of seeking its review.
05. As per the order dated 4th December, 2001, the Second Appeal was admitted on substantial questions of law as framed at Sr. Nos. 8 to 12 in the Memorandum of Appeal. While deciding the Second Appeal, it has been observed in para 3, as under:-
"3. .......In supersession of the substantial questions of law framed at the time of admission, I frame the following substantial questions of law after hearing learned counsel for the parties."
06. In Sushila [supra], the Honourble Supreme Court after referring to provisions of Section 100 (5) of the Code has held that if the substantial questions of law framed earlier are to be re-framed, the parties have to be heard on that aspect and reasons have to be recorded for doing so. Perusal of the judgment dated 9th March, 2016 does not indicate the course as prescribed by Section 100 (5) of the Code having been followed. Hence, on this short ground, the present application deserves to be allowed.
07. In view of aforesaid discussion, judgment dated 9th March, ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:55:01 ::: mca1147.17 5 2016 in Second Appeal No. 233 of 2001 is reviewed and recalled. The Second Appeal is restored to file for fresh adjudication on merits.
08. Application is allowed and disposed of.
Judge
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