Bombay High Court
Shri. Vishwas Panditrao Jape vs Shri. Shrikant Bhagwan Phadnis, ... on 29 February, 2016
Bench: R.M. Savant
wp-12150-12-(36)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12150 OF 2012
Shri Vishwas Panditrao Jape )
Age-Adult, Occ-Business )
Residing at Plot No.51, )
Mitra Mandal Co-operative Housing )
Society, Pune 411009 ) ..Petitioner
Vs.
Shri Shrikant Bhagwan Phadnis )
Age-67 years, Occ-Business )
Residing at 120/561, Shivajinagar, )
Kanpur - 200805 ig )
through his daughter )
Mrs. Reshma Amit Honap )
Age 34 years, Occ Service )
Residing at 98/37, "Pranav" )
Bhusari Colony, )
Paud Road, Pune - 411 0029 ) ..Respondent
Mr. R. M. Pethe for the Petitioner
Mr. Atul P. Vanarse for the Respondent
CORAM : R. M. SAVANT, J.
DATE : 29th FEBRUARY, 2016
ORAL JUDGMENT
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The Writ Jurisdiction of this court is invoked against the order
dated 1-10-2012 passed by the Learned District Judge-6, Pune by which order,
mmj 1 of 5
wp-12150-12-(36)
the application filed by the Petitioner herein came to be allowed and the
Applicant was directed to lead oral and documentary evidence pertaining to
additional issues framed below Exhibit 20 in Regular Civil Suit No.192 of 2004
before the said Court without fail.
3 The said application was filed in Civil Appeal No.553 of 2006
which has been filed by the Petitioner against the decree passed by the Trial
Court dated 1-7-2006. One of the grounds on which the decree has been
challenged is the ground that proper issues were not framed. The matter had
reached this Court by way of Writ Petition No.1631 of 2009, a Learned Single
Judge of this Court A.M.Khanvilkar J., as His Lordship then was, by order
dated 23-3-2009 disposed of the said Writ Petition by directing the Lower
Appellate Court to frame additional two issues which were mentioned in the
said order dated 23-3-2009. The said two issues are to the following effect:
"(1) Whether the defendant proves that the
relationship between the parties was that of
licensor and licensee.
(2) If yes, whether the Rent Court has jurisdiction
to entertain suit filed by the Plaintiff for
possession on the assertion that the relationship
between the parties was that of landlord and
tenant."
mmj 2 of 5
wp-12150-12-(36)
4 It seems that the after the said order, the matter rested there for
sometime. The Petitioner filed the said application Exhibit 5 for referring the
said additional issues to the Lower Appellate Court for returning the findings
thereon after recording evidence. The Lower Appellate Court made the said
application referable to Order XLI Rule 27 of the Civil Procedure Code. The
Lower Appellate Court has rejected the said application on the ground that this
Court vide the said order dated 23-3-2009 had directed the Lower Appellate
Court to add the said additional issues and that the Appellate Court was within
its powers under Order XLI Rule 28 to try the said issues, the Lower Appellate
Court accordingly directed the Petitioner to lead oral and documentary
evidence pertaining to the said additional issues on the next date without fail
and accordingly disposed of the said application by the impugned order dated
1-10-2012.
5 The principal contention of the Learned Counsel for the Petitioner
is that recourse to Rule 28 of Order XLI can only be taken by the Lower
Appellate Court in the event of additional evidence is allowed to be led under
Order XLI Rule 27 and not when additional issues are framed. It is also the
submission of the Learned Counsel that if the Lower Appellate Court tries the
said issues the Petitioner would loose a right of Appeal.
mmj 3 of 5
wp-12150-12-(36)
6 Per contra the Learned Counsel appearing for the Respondent
would support the impugned order and would contend that since this Court
had directed the said additional issues to be tried, the Appellate Court could
consider to try the said issues under Order XLI Rule 28.
7 Having heard the Learned Counsel for the parties, in my view, the
Lower Appellate Court has erred in rejecting the said application filed by the
Petitioner for referring the said issues to the Trial Court for returning the
findings thereon by permitting the parties to lead evidence. The Lower
Appellate Court has erred in observing that it could carry out the said exercise
under Order XLI Rule 28. It is required to be noted that recourse to Order XLI
Rule 28 can only be taken by the Lower Appellate Court in the event of
additional evidence is allowed to be led under Order XLI Rule 27 and not when
additional issues are framed by the higher court. The Learned Counsel was
right in in his submission that the Petitioner / Defendant would loose his right
of Appeal against the findings recorded and order passed in respect of the said
issues. In my view the impugned order is required to be quashed and set aside
and is accordingly quashed and set aside. The said two issue are directed to be
referred to the Trial Court i.e. the concerned Small Causes Court, Pune to
return findings on the said issues to the Lower Appellate Court. The parties to
appear before the Small Causes Court Pune, on 14-3-2016 with a copy of the
instant order. The parties to also inform the Lower Appellate Court of the
mmj 4 of 5
wp-12150-12-(36)
instant order. The Trial Court to return the findings on the said issues to the
Lower Appellate Court latest by 30-6-2016.
8 The Petition is allowed to the aforesaid extent. Rule is accordingly
made absolute with parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
mmj 5 of 5
