Baliram S/O Vithu Khaire vs Mahadeo Ramchandra Chikate
2016 Latest Caselaw 2000 Bom

    926-J-SA-125-14                                                                           1/8


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                            NAGPUR BENCH, NAGPUR.

                                SECOND APPEAL NO.125 OF 2014




                                                              
    Baliram s/o Vithu Khaire 
    Aged about 58 years, 




                                                             
    Occupation : Agriculturist, 
    R/o Sadhankar Wadi, Tq. Wani, 
    Dist. Yavatmal.                                ... Appellant. 




                                               
    -vs-

    Mahadeo Ramchandra Chikate        
    Aged about 57 years, 
    Occ. Agriculturist & Service 
    R/o Nandepera, Wani, 
                                     
    Tq. Wani, Dist. Yavatmal.                      ... Respondent. 


    Shri S. C. Bhalerao, Advocate for appellant. 
             


    Shri S. R. Deshpande, Advocate for respondent. 
          



                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : April 28, 2016

Oral Judgment :

Admit on the following substantial question of law :

" Whether failure on the part of the Appellate Court to consider

the application below Exhibit-4 for permission to file the written

statement and the application for permission to place on record

certain documents/affidavits while deciding the appeal has

resulted in prejudice to the appellant ?"

926-J-SA-125-14 2/8

2. The appellant is the original defendant. It is the case of the respondent-

original plaintiff that on 15/07/2006 the defendant had entered into an

agreement for sale of agricultural land bearing survey No.131/1 admeasuring

2H 32R situated at village Parsoda, Tq. Wani, Dist. Yavatmal. According to

the plaintiff, the total consideration payable was Rs.4,52,000/- and earnest

amount of Rs.1,00,000/- was paid when the agreement was entered into.

The sale deed was to be executed by 15/07/2007 when the balance

consideration was to be paid. According to the plaintiff on 10/07/2007 a

notice came to be issued by him to the defendant seeking execution of the

sale deed. On failure on the part of the defendant to execute the sale deed,

the suit for specific performance of aforesaid agreement was filed on

21/07/2007.

3. The defendant though served, did not file his written statement after

which the suit proceeded without his written statement. The plaintiff led his

evidence but he was not cross-examined. The trial Court therefore accepted

the evidence as led by the plaintiff and by judgment dated 23/02/2010

decreed the suit for specific performance.

4. The defendant being aggrieved filed an appeal under Section 96 of the

Code of Civil Procedure, 1908 (for short, the Code). This appeal was

initially filed in this Court in view of the pecuniary jurisdiction of the District

926-J-SA-125-14 3/8

Court. The same was numbered as F.A.No.1126 of 2010. During pendency

of the first appeal, the defendant filed C.A.No.819 of 2011 seeking

permission to file written statement on record. The defendant also filed C.A.

No.820 of 2011 seeking permission to file document/affidavit on record.

However, on account of enhancement of pecuniary jurisdiction of the

District Court, the appeal came to be transferred to the District Court,

Yavatmal by order dated 03/03/2012.

Before the Appellate Court, the application for staying the effect and

operation of the decree passed by the trial Court was considered. Thereafter

the learned counsel for the parties were heard and by judgment dated

13/02/2014, the appeal filed by the defendant came to be dismissed. Being

aggrieved, the present second appeal has been filed.

5. Shri S. C. Bhalerao, the learned counsel for the appellant submitted that

the Appellate Court proceeded to decide the appeal without considering the

application which was filed below Exhibit-4 by which permission to file

written statement at the appellate stage was sought. It was submitted that

the plaintiff had filed reply to the aforesaid application below Exhibit-5. But

without deciding this application, the Appellate Court proceeded to decide

the appeal itself. Similar reason was urged with regard to the application for

permission to file document/affidavit on record. The learned counsel

submitted that even to this application, a reply had been filed by the plaintiff

926-J-SA-125-14 4/8

on 15/04/2011. This application was also not decided. It was then

submitted that one Shri Rahul Khaparde had filed affidavit below Exhibit-26

before the Appellate Court and he was cross-examined by the defendant.

However, while deciding the appeal, the affidavit filed by aforesaid deponent

as well as his statements in the cross-examination were not taken into

consideration by the Appellate Court. It was therefore submitted that on

account of failure on the part of the Appellate court in considering the

material which was available on record and failure to decide the pending

applications had resulted in causing prejudice to the case of the appellant.

Without prejudice to the aforesaid, the learned counsel also challenged

the correctness of the decree passed by the trial Court as well as the

Appellate Court by relying upon the provisions of Order VIII Rule 10 of the

Code. In support of aforesaid submissions, the learned counsel placed

reliance on following judgments :

(a) (1999) 8 Supreme Court Cases 396 Balraj Taneja and anr. v.

Sunil Madan and anr.

(b) (2013) 4 Supreme Court Cases 396 Shantilal Gulabchand

Mutha v. Tata Engineering and Locomotive Company Ltd. And anr.

      (c)         2014 AIR SCW 1412  Maya Devi v. Lalita Prasad.
      (d)         2014(5)  Mh.L.J. 745 Shriram  Education Society, Nagpur  and
                  ors. vs. Nagpur Improvement Trust.
      (e)         AIR 2011 Supreme Court 1492 H. Siddiqui (dead) by Lrs. v. A.
                  Ramalingam. 




     926-J-SA-125-14                                                                             5/8


      (f)         2014(7) ALL MR 267 Smt. Ramabai Namdeo Gavand & Ors. v.




                                                                                        
                  Ravindra Pandarinath Ulavekar and ors. 




                                                                
     

6. Shri S. R. Deshpande, the learned counsel for the respondent

vehemently opposed aforesaid submissions. According to him, the decree

passed by the trial Court was rightly confirmed by the Appellate Court. He

submitted that it was not open for the defendant to seek permission to file

his written statement at a belated stage. Similarly it was not open for the

defendant to seek to rely upon document at a belated stage. According to

him, the affidavit of Shri Rahul Khaparde was filed on record on behalf of the

plaintiff and said witness had been cross-examined by the defendant before

the Appellate Court. Considering his deposition, it could not be said that the

defendant had no knowledge about pendency of the suit and that his non-

participation in the said proceedings was deliberate.

Without prejudice to the aforesaid, the learned counsel submitted that

decree passed by the trial Court was after taking into consideration the entire

evidence on record and therefore it cannot be said that the suit had been

decreed in a mechanical manner. This decree was confirmed by the

Appellate Court. He therefore submitted that no substantial question of law

arose in the second appeal and the same was liable to be dismissed.

7. With the assistance of the learned counsel for the parties I have perused

926-J-SA-125-14 6/8

the records and I have given due consideration to their respective

submissions. As noted above, the appeal under Section 96 of the Code was

filed in this Court bearing F.A. No.1126 of 2010. C. A. No.819 of 2011 for

permission to file written statement on record as well as C.A.No.820 of 2011

for placing on record certain documents/affidavits had been filed by the

defendant. When the appeal was transferred to the District Court for

adjudication the aforesaid applications were still pending. It was therefore

necessary for the Appellate Court to have decided these applications on

merit. It is to be noted that the defendant was seeking permission to file his

written statement and to place on record certain documents. Reply to

aforesaid applications was also filed by the plaintiff. It was therefore

incumbent upon the Appellate Court to have decided the same in accordance

with law. Failure to decide the said applications has certainly caused

prejudice to the case of the defendant. The submission made on behalf of

the plaintiff that these applications were deemed to have been rejected as the

appeal had been decided on merits cannot be accepted. It was necessary for

the Appellate Court to have passed orders on both the applications.

8. The other aspect which is required to be noted is that the plaintiff had

placed on record the affidavit of Shri Rahul Khaparde dated 28/08/2012.

The deponent was cross-examined by the defendant. The Appellate Court

however, while deciding the appeal has failed to take into consideration the

926-J-SA-125-14 7/8

contents of aforesaid affidavit and the statements made in the cross-

examination of said deponent. Having permitted the plaintiff to rely upon

said affidavit at Exhibit-26 but having failed to consider this particular

material has also vitiated the impugned judgment. It was necessary for the

Appellate Court to have dealt with aforesaid material in accordance with law.

As it has been found that the Appellate Court has failed to decide the

application at Exhibit-4 and the application seeking permission to file

documents on record as well as failure to take into consideration the

affidavit Exhibit-26, the impugned judgment stands vitiated. The

substantial question of law is answered by holding that the aforesaid aspects

have caused prejudice to the case of the appellant.

9. As it is found necessary to direct the Appellate Court to reconsider the

appeal on its merits, it is not necessary to record any finding with regard to

the challenges raised by the appellant on merits. These points are kept

open for being urged before the Appellate Court. In view of aforesaid, the

following order is passed :

(i) The judgment dated 13/02/2014 in R.C.A. No.23 of 2012 is set

aside. The proceedings are remanded to the Appellate court to

decide the appeal afresh in accordance with law and in the light of

observations mad in the judgment. The record and proceedings be

sent to the Appellate Court forthwith.

     926-J-SA-125-14                                                                                      8/8


    (ii)       The parties shall appear before the Appellate Court on 13/06/2016




                                                                                                 

and the appeal shall be decided by the end of September 2016.

(iii) It is to be noted that pursuant to the decree passed by the trial

Court, the sale deed of the suit property stands executed in favour

of the plaintiff during pendency of the appeal. The position as it

was prevailing on 11/03/2014 shall be maintained during

pendency of the appeal. It is made clear that the respective

contentions of the parties on merits of the case are kept open.

(iv) The second appeal is allowed in aforesaid terms with no order as to

costs.

JUDGE

Asmita