Bombay High Court
Veerumal Tejumal Tulsani vs Ku.Minaxi Chokhoba Khobragade ... on 23 November, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 173 OF 1992
Veerumal Tejumal Tulsani
(Org. Defendant No.7) ...... Appellant.
...VERSUS...
1] Ku. Minaxi d/o Chokhoba Khobragade,
2]
Prashant s/o. Chokhoba Khobragade.
3] Smt. Saraswati w/o. Baburao Khobragade
(appeal abated as per Order dt. 04.10.06)
4] Shri Om Sidharth,
5] Shri Anantlal,
6] Baburao Fakiraji Khobragade, through
6-a] Smt. Suhas Shinde,
R/o. Mullick Apartment, F-2, Ground Floor,
Behind Hotel Airport Centre Point,
Somalwada Square, Nagpur.
6-b] Smt. Sangmitra Rahul
R/o. G-1, Saibaba Apartment, 17,
Excise Colony, Nr. Dr. Mahatme
Eye Hospital, Behind Sanjay
Optical, Chhatrapati Square, Nagpur.
6-c] Smt. Hirkani Baba Ramteke,
R/o. Plot No. 42, Behind Blue
Diamond School, Anantnagar,
Nagpur.
6-d] Smt. Hirabai Kishore Meshram,
R/o. Barsey Colony, Near Barsey Ghat,
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Siddharth Nagar, Teka, Nagpur.
6-e] Smt. Rajbharti Adinath Ramteke,
R/o. Plot No.17, Madhav Nagar, Khat Road,
Bhandara, Maharashtra State.
7] Smt. Triveni w/o Chokhoba Khobragade,
8] Smt. Alka Deepak Meshram. .. RESPONDENTS
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Shri Mohit Vaswani, counsel for appellant.
None for respondents.
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CORAM: R. K. DESHPANDE, J.
DATE : 23 rd
NOVEMBER, 2016 .
ORAL JUDGMENT
1] It is unfortunate that this second appeal of 1992
is coming for hearing after about 24 years, in which this Court
had passed an order on 17.07.1992, as under;
"Heard counsel.
Admit, as the substantial question of law, which arises for
consideration in this second appeal, in view of pursis
Exh.60 before the first appellate Court, is whether an
opportunity of hearing was refused to the appellant by the
first appellate Court and, therefore, the findings recorded
by the first appellate Court are vitiated.
Interim stay of possession only upon the appellant
furnishing security in the sum of Rs.20,000/- (Rupees
Twenty Thousand), within one month, before the trial
Court.
Shri Bower for Respondent Nos. 1, 2, 7 and 8 waives
notice".
2] In spite of service of notice, no one appears for
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the respondents. It is, therefore, not possible for this Court to
frame a substantial question of law other than the one which
is already framed above, without giving notice of it to the
respondents. If the another substantial question of law is to
be framed by this Court, then the matter is likely to take
further time of atleast six months to finally decide this matter
and one doesn't know whether all the respondents will be
served in the matter.
3] The trial Court had passed a decree on
05.02.21996 in Regular Civil Suit No. 757 of 1981, declaring
the sale deeds dated 29.06.1969 and 10.09.1981 as null and
void and directing defendant nos. 1 to 4 and 7 to deliver the
vacant possession of the suit premises described in
Schedule-A of the plaint to the plaintiffs. Further enquiry into
mesne profit had also been ordered and the defendants
were restrained permanently from interfering with the
possession and title of the plaintiffs over the suit property.
Regular Civil Appeal No. 252 of 1986 has been dismissed by
the lower appellate Court on 18.03.1992, concurring with the
findings recorded by the trial Court. The defendants against
whom the decree is passed are before this Court in this
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second appeal.
4] The learned counsel for the appellant has invited
my attention to the pursis dated 18.03.1992 filed before the
lower appellate Court in Civil Appeal No. 252 of 1986, along
with the order passed thereon. The pursis and the order
both are reproduced below.
"PURSIS
On 17.03.1992 the arguments of respondent's counsel
was over. The counsel for appellant expressed to give
reply. He was told that he would be heard on 18.03.1992
at 11 A.M. The counsel for the appellant came in the court
at about 10.50 A.M. The court started dictating judgment
without hearing the counsel of appellant in reply to the
arguments of the counsel of respondents/original plaintiff".
"ORDER
Before starting dictating the judgment, the learned counsel
Mr. D.P.Lalwani, even though he was present before me,
did not show his desire to give any reply to the argument
of the advocate for the respondent Nos. 1 and 2" .
5] In view of the factual position that this Court
cannot frame another substantial question of law in the
absence of the respondents, this Court is not left with any
choice but to set aside the judgment and order passed by the
lower appellate Court on the ground that the appellants were
not provided an opportunity to give reply to the arguments
advanced by the respondents in Civil Appeal No. 252 of
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1986. The substantial question of law framed by this Court
is answered accordingly.
6] In the result, the second appeal is allowed. The
judgment and order dated 18.03.1992 passed in Regular
Civil Appeal No. 252 of 1986 is hereby quashed and set
aside. The matter is remitted back to the lower appellate
Court to decide the said appeal afresh in accordance with law
after hearing all the parties concerned. R and P, if received
be sent back immediately. No order as to costs.
JUDGE
Rvjalit
