Bombay High Court
Baburao S/O Sadashiv Gadge (Since ... vs Laxman Tukaram Mate (Dead) ... on 2 December, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Appeal Against Order No. 39 of 2016
Appellants : Baburao son of Sadashiv Gadge (since deceased,
through his legal heirs :
1) Smt Archana wd/o Baburao Gadge, aged about
36 years, Occ: Household work
2) Om son of Baburao Gadge, aged about 13 years
Occ: Student, Minor
3) Amit son of Baburao Gadge, aged about 9 years,
Occ: student, Minor
Nos. 2 and 3 being minor, through their guardian
appellant no. 1 Smt Archana Baburao Gadge
All residents of Jawahar Ward, Umarkhed, District
Yavatmal
versus
Respondents: Laxman Tukaram Mate (dead), through his legal
heirs -
1) Chandrabhagabai wd/o Laxman Mate, aged
about 71 years, Occ: Household work
2) Shivshankar son of laxman Mate, aged about
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54 years, Occ: business,
3) Chandrakant son of Laxman Mate, aged about
56 years, Occ: business
Nos. 1 to 3 residents of Tilak Ward, Umarkhed,
District Yavatmal
4) Sau Panchafula Ramesh Arya, aged about
58 years, Occ: Household work
5) Sau Anjanabai Mahaduji Ansule, aged about
ig 56 years, Occ: Household work
Nos. 4 and 5 residents of Tilak Ward, Umarkhed,
District Yavatmal
6) Aruna Govinda Dhole (Dead), through legal
heirs -
6A) Vicky son of Govinda Dhole, aged about
23 years, Occ: service, resident of Shelu,
Tahsil Pusad, District Yavatmal
7) Janabai Laxman Mate, aged about 61 years,
Occ: Househodl work
8) Prashant Laxman mate, aged about 41
years, Occ: business
9) Vishnu Laxman Mate, aged about 38
years, Occ: business
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10) Dashrath laxman Mate, aged about 36
years, Occ: business,
Nos. 7 to 10 residents of Siddheshwar Ward,
Umarkhed, District Yavatmal
Shri C. A. Joshi, Advocate for appellants
Shri G. M. Kubde, Advocate for respondent no. 10
Respondents no. 1 to 9 served
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ig Coram : S. B. Shukre, J
Dated : 2nd December 2016
Oral Judgment
1. Heard. Admit. Heard finally in terms of order dated 27 th July
2016.
2. In this appeal, legality and correctness of the judgment and
order dated 9th May 2016 passed by the District Judge-1, Pusad in Regular
Civil Appeal No. 79 of 2010 has been questioned.
3. According to Shri C. A. Joshi, learned counsel for the
appellants, evidence on record would show that it is so adequate and
sufficient as to enable the Court to decide all the disputed questions of
fact and there was no need for remanding the matter to the Civil Judge,
JD, Umarkhed. He points out the provisions of Order 41, rule 24 of the
Code of Civil Procedure conferring powers upon the appellate court to
finally determine the suit after resettling issues inspite of the fact that the
judgment of the Court from whose decree the appeal is preferred has
proceeded wholly upon some ground other than that on which the
Appellate Court proceeds.
4. Shri Kubde, learned counsel for respondent no. 10 submits
that the provisions of Order 41, rule 24 CPC sufficiently empowers the
Appellate Court to deal with the controversy in an effective manner and
also to resettle the issues. Therefore, he submits that an appropriate
order may be passed in this case.
5. Upon going through the impugned judgment and order, I find
that it has been decided only upon preliminary point as to whether or not
remand in the matter was warranted. It is further seen that the 1 st
Appellate Court while remanding the case to the trial Court on the ground
that issues were not properly framed by it, did not indicate which issues
were required to be framed and what was exactly the error committed on
this count by the trial Court. The matter is to be remanded with direction
to the trial Court what issue or issues shall be tried in the case so
remanded. This is the requirement of Order 41, rule 23 CPC. Even
otherwise, in the absence of any indication being given in the judgment of
remand as to what is in the mind of the Appellate Court which it expects
the trial Court to come to terms with, it would not be possible for the trial
Court to live upto the expectations of the Appellate Court. This is what
has happened in the instant case.
6. Apart from what is stated earlier, I am of the view and as
rightly pointed by learned counsel for the appellants and learned counsel
for respondent no. 10, Order 41, rule 24 CPC effectively invests the
Appellate Court with all powers to do justice between the parties. That is
the reason why it lays down that where the evidence available on record
is found to be sufficient to enable the Appellate Court to pronounce
judgment on merits of the case even after it proceeds on some different
grounds than those forming basis of the judgment against which the
appeal is preferred, the Appellate Court can do so. The only condition in
such case would be that there must be present on record sufficient
evidence.
7. On going through the record of this case and as both learned
counsel agree with me, I find that there is sufficient evidence already
available on record which would enable the 1st Appellate Court to fully
utilize its power under the Code of Civil Procedure including the power
conferred by Order 41, rule 24 of the Code of Civil Procedure. Appeal
deserves to be allowed.
8. Appeal is allowed. Impugned judgment and order are
hereby quashed and set aside. The 1 st Appellate Court is directed to to
hear and decide the appeal on merits as early as possibly and preferably
within six months from the date of receipt of this order. Parties to bear
their own costs.
ig S. B. SHUKRE, J
joshi
