Bombay High Court
Shobha Pralhad Khadase vs Yamutai W/O Madhukar Malokar on 12 December, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 369/2016
Appellant : Shobha Pralhad Khadase,
Original Defendant Aged about 49 years, Occu: Household,
on RA R/o Bittiseth Agarwal Layout, Anand
Nagar, Malkapur Akola Tq. and Dist. Akola.
Versus
Respondent : Yamutai w/o Madhukar Malokar,
Original Plaintiff Aged about 68 years, Occ: Household,
on R.A. R/o Bittiseth Agarwal Layout, Anand
Nagar, Malkapur, Akola Tq & Dist. Akola.
========================================
Shri S.A. Mohta, Advocate for the Appellant.
Shri D.S. Patil, Advocate for the Respondent.
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CORAM : A.S.CHANDURKAR, J.
DATE : 12/12/2017
ORAL JUDGMENT :-
1. Notice for final disposal of the appeal was issued by framing
the following substantial question of law:
Whether the appellant Court was justified in
refusing to grant an opportunity to the
appellant to contest the proceedings before
the trial Court?
Accordingly the learned counsel appearing for the parties
have been heard on the said Substantial Question of Law.
2. The appellant is the original defendant in the suit filed by the
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respondent herein for declaration that the defendant has no right, title
and interest in Plot No. 98 as well as for perpetual injunction. According
to the plaintiff she was in possession of the suit property since 1992 by
virtue of a registered sale deed. According to the plaintiff, though Plot
Nos. 97 and 98 were separate, the defendant was trying to interfere with
her possession. The defendant, while opposing the application for
temporary injunction, filed her reply on Exhibit-18. This reply was
subsequently adopted as her written statement. The plaintiff examined
herself and her witnesses. That evidence went unchallenged. The
defendant did not lead any evidence. The plaintiff subsequently gave up
the prayer for declaration and merely sought permanent injunction. The
trial Court accordingly, by judgment dated 12/7/2012, partly decreed
the suit and restrained the defendant from obstructing the possession of
the plaintiff. The appeal filed by the defendant has been dismissed and
hence the present second appeal has been filed.
3. Shri S.A. Mohta, learned counsel for appellant, in support of
the appeal, submitted that an opportunity was liable to be given to the
defendant to contest the suit on merits. The suit was not properly
conducted by the defendant's counsel thereby causing prejudice to her
case. Various material aspects were suppressed by the plaintiff and
therefore she was not entitled for any discretionary relief with regard to
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injunction. The documents to indicate registration of the offence against
the plaintiff and other orders passed by the Municipal Corporation were
placed on record before the trial Court. However, without considering
the same and by drawing the adverse inference against the defendant,
the suit was decreed. Though all these points were raised before the
appellate Court, they had not been duly considered. He, therefore,
submitted that alongwith the present second appeal, the application
seeking permission to produce the additional evidence has also been
filed.
4. Shri D.S. Patil, the learned counsel for respondent opposed
the aforesaid submissions. According to him, sufficient opportunity was
granted to the defendant to contest the suit. The trial Court as well as
the appellate Court considered the conduct of the defendant and rightly
refused to grant further opportunity to her. The decree as passed is on
the basis of the evidence led by the plaintiff and her witnesses which
went unchallenged. It was, therefore, submitted that no substantial
question of law arises for consideration.
5. With the assistance of the learned counsel for parties I have
persued the record of the case and I have given due consideration to
their respective submissions. Alongwith the suit, the plaintiff filed an
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application for temporary injunction. The reply to this application was
filed at Exhibit No.18. Thereafter, this reply was treated as written
statement by the defendant. The plaintiff examined herself and her
witnesses. These witnesses were not cross examined. The defendant then
moved an application below Exhibit-54 for setting aside that order. The
defendant was permitted to cross-examine the witnesses, subject to
paying costs of Rs. 150/- to the plaintiff. The order dated 17/9/2011
was passed by the trial Court below Exhibit-1 that as the amount of costs
were not paid, the defendant had forfeited the right to cross-examine the
plaintiff and her witnesses. The plaintiff thereafter moved an application
at Exhibit-55 for the appointment of Commissioner. This application was
rejected on 17/09/2011. The defendant then moved an application at
Exhibit-62 for permission to cross-examine the witnesses and to pay
costs as per order passed below Exhibit-54. By order dated 21/11/2011,
this application was allowed subject to payment of costs of Rs. 1,000/-.
Though the amount of costs was paid, the witnesses were not examined.
Thereafter, by another order dated 21/11/2011 passed below Exhibit-
63 despite delay of two and half years, the permission was granted to
file the written statement subject to payment of costs of Rs. 400/-.
Despite this, the written statement was not filed. Thereafter, the
application below Exhibit-66 was moved for amending the Exhibit
No.18. This application was allowed, as per the order dated 29/02/2012
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subject to costs of Rs. 300/-. This right to amend the reply was forfeited
on 27/06/2012 as the costs of Rs. 300/- was not paid. Thereafter on
05/07/2012 as the defendant and her counsel were absent, her evidence
was closed.
6. The trial Court after considering all these aspects as well as
the evidence led by the plaintiff granted relief of permanent injunction.
It took into consideration the layout map Exhibit No.48 and held that the
Plot No. 97 was shown at the northern side of the Plot No.98. The
appellate Court, after reconsidering this evidence, confirmed the decree
passed by the trial Court.
7. Thus, from the record it is clear that despite sufficient
opportunity being granted to the defendant, she did not contest the suit
with required deligence. Merely filing the photo copies of the certain
documents could not mean that those documents have to be exhibited. It
was for the defendant first to cross-examine the plaintiff and her
witnesses and thereafter lead her evidence. Hence, the submission that
the trial Court ought to have considered the said documents does not
take case of the defendant in further. The first appellate Court has in
paragraph 14 of its judgment considered the conduct of the defendant
and has thereafter refused to remand the proceedings. It has also
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considered boundaries of the Plot no. 98 and thereafter confirmed the
decree.
8. In view of the aforesaid, I find that no error has been
committed by either the trial Court or by First Appellate Court while
holding against the defendant. The substantial question of law framed is
answered by holding that the appellate Court was justified in refusing to
grant an opportunity to the defendant to contest the proceedings before
the trial Court. As a result of the answer to this question, the appeal is
liable to be dismissed. The Second Appeal is, therefore, dismissed. No
costs.
JUDGE
nandurkar
