Bombay High Court
Mahadeo Ramchandra Chikate vs Baliram S/O Vithu Khaire on 10 July, 2017
Bench: Dr. Shalini Phansalkar-Joshi
ao58.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.58 OF 2016
Mahadeo Ramchandra Chikate,
Aged about 57 years,
Occupation: Agriculturist & Service,
R/o Nandepera, Wani, Tq. Wani,
District Yavatmal. ....... APPELLANT
...V E R S U S...
Baliram s/o Vithu Khaire,
Aged about 58 years,
Occupation: Agriculturist,
R/o Sadhankar Wadi,
Tq. Wani, District Yavatmal. ....... RESPONDENT
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Shri S.R. Deshpande, Advocate for Appellant.
Shri S.C. Bhalerao, Advocate for Respondent.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE: th
10 JULY, 2017.
ORAL JUDGMENT
1] This is an appeal against the judgment and order
dated 27.09.2016 passed by District Judge-1, Kelapur in Regular
Civil Appeal No.23/2012, thereby remanding the Special Civil Suit
No.31/2007 to the Court of Civil Judge, Senior Division,
Pandharkawada [Kelapur], District Yavatmal for fresh trial in
accordance with law and after hearing both the sides.
2] Brief facts of the appeal can be stated as follows:
The appellant has filed Special Civil Suit No.31/2007
for specific performance of the contract in respect of the
agricultural land bearing Gat No.131/1, area 2 H 23 R situate at
village Parsoda, Tq. Wani, District Yavatmal. The suit was based
on the agreement of sale dated 15.07.2006.
3] In the said suit, the respondent appeared on service of
summons, but failed to file written statement in spite of sufficient
opportunity. Hence, the suit proceeded without written statement.
As on the date of hearing also the respondent did not remain
present, the suit was heard and decided finally on 23.03.2010.
The suit came to be decreed and the notice of the execution
proceeding was issued to the respondent.
4] Respondent thereafter presented First Appeal
No.1126/2010 before this Court under Section 96 of the Code of
Civil Procedure challenging the said judgment and order. In the
said appeal he also filed Civil Application No.819/2011 for grant
of permission to file written statement on record at appellate
stage. He further presented Civil Application No.820/2011 for
grant of permission to file certain documents and affidavit
evidence on record. Both these applications were resisted by the
appellant herein by filing his written reply.
5] After the pecuniary jurisdiction of the District Court
was enhanced, this appeal came to be transferred to the District
Court at Kelapur and it was renumbered. The appeal was heard
and came to be dismissed on 13.02.2014.
6] The respondent herein, then preferred Second Appeal
No.125/2014 in this Court bringing to the notice of this Court that
Civil Application No.819/2011 and Civil Application
NO.820/2011 were not decided by the District Court before
dismissing the appeal. Hence, this Court vide its judgment and
order dated 28.04.2016 remanded the matter back to the District
Court for deciding the same after considering both these
applications.
7] After remand of the matter, the First Appellate Court
heard and decided both these applications, vide his separate
orders passed below them and permitted the respondent herein to
file written statement on payment of heavy costs of Rs.10,000/-
and further granted permission to him to file documents/affidavit
evidence on record. This civil application was also allowed subject
to costs of Rs.5000/-.
8] Thereafter, considering that both these applications
are allowed, hence, now there was written statement and the
evidence affidavit filed along with the documents filed by the
respondent, on record, the First Appellate Court thought it fit to
remand the matter back to the Trial Court for fresh trial, so that
the written statement and the affidavit evidence coupled with the
documents filed by respondent can be considered by the Trial
Court and Trial Court can decide the suit on merit, after hearing
both the parties. Accordingly, the First Appellate Court, vide its
impugned judgment and order remanded the matter for fresh
trial.
9] Being aggrieved by this judgment and order the
present appeal is preferred. According to learned counsel for
appellant, the reason given by the First Appellate Court for
remand of the matter is not at all correct and legal. It is submitted
that there is no such provision for issuing fresh notice to the
respondent-defendant at the time of trial for final hearing of the
suit and hence, First Appellate Court has committed an illegality
in holding that as such notice was not issued to the
respondent-defendant, the ex parte decree passed by the Trial
Court was not correct and hence, remand was necessary.
10] Further it is submitted that when this Court had
directed the First Appellate Court to decide the matter, it was not
proper and legal on the part of the First Appellate Court to further
remand the matter to the Trial Court.
11] It is also submitted that the First Appellate Court has
committed an error in allowing the application filed by
respondent-defendant for permission to present his written
statement on record. It is urged that as per Order VIII Rule 1 of
the Code of Civil Procedure, the time to file the W.S. is stipulated
of one month and it cannot be extended beyond three months.
Therefore, the First Appellate Court could not have extended the
time for filing of W.S. especially in the light of the provisions of
Section 148 of the Code of Civil Procedure, which do not permit
the extension of such time.
12] Thus according to learned counsel for appellant, the
Trial Court has committed a grave error in remanding the matter
back to the Trial Court for fresh hearing.
13] Per contra, learned counsel for respondent has
supported the impugned judgment and order of the First Appellate
Court by submitting that the appellant has not challenged the
order passed by the First Appellate Court allowing respondent's
applications for permission to file W.S. and for permission to
produce affidavit evidence with documents. It is submitted that as
those orders are complied with and they have become final, it was
necessary for the First Appellate Court to remand the matter to
the Trial Court for fresh hearing, in view of the written statement
and affidavit evidence permitted to be produced on record.
The matter was hence required to be decided after taking into
consideration the said written statement, affidavit evidence and
the documents of the respondent-defendant. According to learned
counsel for respondent, therefore, no illegality is committed by the
First Appellate Court in passing impugned judgment and order.
14] On these rival submissions made by learned counsel
for both the parties, the only point, which arise for my
determination is, whether the impugned order passed by the First
Appellate Court of remanding the matter for fresh hearing is just,
legal and correct?
15] The chronology of the events of the litigation
elaborated herein above, is more than sufficient to show that the
suit was decreed without W.S. and without the presence of
respondent-defendant even at the time of hearing, so it was as
good as an ex parte decree, though it might have been passed
under Order VIII Rule 10 of the Code of Civil Procedure.
16] It is a matter of record that only when respondent
received the notice of execution, he filed the appeal, which came
to be dismissed. He filed second appeal before this Court and in
that appeal, he had also filed two applications, one for permission
to file written statement and another for permission to file
affidavit evidence and the documents. As both these applications
were not decided by the District Court when appeal was
transferred to it in the Second Appeal, this Court has to again
remand the matter to the First Appellate Court for consideration
those applications. Accordingly, the First Appellate Court has
considered both these applications and allowed the application
granting permission to respondents to file his written statement
subject to the payment of heavy costs of Rs.10,000/- and also
allowed another application permitting the respondent to file an
affidavit evidence on record along with documents subject to the
heavy costs of Rs.5000/-. Both these orders are complied with by
the respondents. In such a situation, when already the written
statement was on record and also the affidavit evidence and
documents filed by the respondent were also on record, the First
Appellate Court has no other option, but to remand the matter
back to the Trial Court for retrial.
17] Now, the question for consideration is whether the
Appellate Court should have, despite the provisions of Order VIII
Rule 1 of the Code of Civil Procedure, which more or less are
mandatory in nature extended the time for filing of the written
statement by respondent and that too in the appeal and beyond
the time stipulated? However, in this respect, the law is fairly well
crystalized by the various judgments of the Hon'ble Supreme
Court, some of the judgments are Zolba vs Keshao and ors. AIR
2008 SC 2099 and R.N. Jodi and Brothers vs. Subhashchandra AIR
2007 SC 257, wherein it is held that the provisions of Order VIII
Rule 1 of the Code of Civil Procedure, though cast an obligation
on the defendant to file the written statement within the period of
thirty days, from the date of service of summons on him and
within the extended time of ninety days, the said provisions do
not deal with the power of the Court and it also does not
specifically take away the power of the Court to take written
statement on record though filed beyond the time as provided for.
Thus, the settled position of law is that the Court can extend the
time stipulated in Order VIII Rule 1 of the Code of Civil Procedure
for filing of W.S. in exceptional cases.
18] In the present case, it is not the Trial Court, which has
extended the time, but it is the First Appellate Court, which has
after taking into consideration all the facts on record has allowed
the respondent to file the written statement, so that the matter
can be decided on merit. Hence this submission that First
Appellate Court could not have extended the time for filing of the
written statement cannot be accepted. It is the duty of the
Appellate Court to decide the matter on merit and for that
purpose to pass all such orders, which are necessary, like the
remand and retrial of the matter.
19] As regards the submission that, if this Court has, vide
its judgment and order directed the First Appellate Court to decide
the matter, it was not proper on the part of the First Appellate
Court to remand the matter, needless to state that this Court has
vide its order dated 28.04.2016 directed the First Appellate Court
to decide the appeal afresh in accordance with law and hence, it
cannot be said that the First Appellate Court was directed to
decide the suit itself. Accordingly, the First Appellate Court has
decided the appeal and while deciding the appeal, as the First
Appellate Court found that, in view of the permission granted to
the defendant to file the written statement and also the affidavit
evidence and documents, it was necessary to remand the matter
for fresh trial, no fault can be found in the impugned judgment
and order of the Trial Court.
20] It is needless to state that, the cause of the litigant
should not suffer on any count and he should be given all the
opportunity when he has approached the Court to get his matter
decided on merit. Herein the case, perusal of the judgment of the
First Appellate Court reveals that it has considered that though
respondent-defendant has appeared in the suit through his
counsel, if counsel has not filed written statement nor remained
present at the time of hearing of the suit and as a result, when the
suit came to be decreed ex parte under Order VIII Rule 10 of the
Code of Civil Procedure and when the decree pertains to
immovable property for its specific performance, the interest of
justice always require that such matter should be decided on
merit, after giving one more opportunity to the party to contest it.
Herein the case accordingly, the First Appellate Court has, in
order to compensate the appellant also imposed heavy costs of
Rs.10,000/- while allowing the respondent application for
permission to file written statement and further costs of Rs.5000/-
for permitting the respondent to adduce his evidence affidavit and
the documents. It was in these circumstances more than necessary
for the First Appellate Court to remand the matter back to the
Trial Court for hearing it on merit.
21] Thus looked at it from any angle, I do not find that
impugned order passed by the First Appellate Court calls for any
interference. There is also no question of any prejudice being
caused to the appellant as he is also getting an opportunity to lead
his evidence and re-agitate the matter. The First Appellate Court
has also made the disposal of the matter time bound and hence on
this count there is no ground for prejudice also. The interest of
justice required that both the parties agitate their respective
contentions before the Trial Court and Trial Court decide the suit
afresh.
22] The appeal therefore, holds no merit and hence
stands dismissed, with no order as to costs.
JUDGE
NSN
