Kanhobaji S/O. Katuji Zile vs Smt. Sulbha Wd/O. Balkrushna ...
2017 Latest Caselaw 804 Bom

226-J-AO-8-13                                                                               1/5


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                     APPEAL AGAINST ORDER  NO.8 OF 2016


Kanhobaji s/o Katuji Zile, 
Aged about 73 years, Occ. Money Lending, 
R/o Borgaon, Tq. Kelapur, 
Dist. Yavatmal                                                 ... Appellant. 

-vs-

1.  Sulbha wd/o Balkrushna Thakare
     (since dead Through LRs).  

2.  Vishaka w/o Subhash Mankar,
     Aged about 25 years, Occ. Household, 
     R/o Mangli, Tq. Zari-Jamni, 
     Dist. Yavatmal. 

3.  Aditya s/o Balkrushna Thakare
     Aged about 22 years. 
     Occ. Education/Agriculturist, 
     Borgaon, Tq. Kelapur, 
     Dist.  Yavtmal. 

4.  Diksha d/o Balkrushna Thakare,
     Aged about 20 years, 
     Occ. Education, R/o Borgaon, 
     Tq. Kelapur, Dist. Yavatmal.                              ...  Respondents.  


Shri M. I. Dhatrak, Advocate for appellant. 
Shri S. S. Bhalerao, Advocate for respondent Nos.2 to 4. 

                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : March 17, 2017

Oral Judgment :

By this appeal filed under Order XLIII Rule 1(u) of the Code of

226-J-AO-8-13 2/5

Civil Procedure, 1908 (for short, the Code) the order passed by the

Appellate Court remanding the proceedings in RCS No.15/2012 for fresh

consideration is under challenge.

2. The appellant is the original plaintiff who has filed suit for specific

performance of agreement dated 04/08/2012. By said agreement

agricultural filed admeasuring 1H 21 R was to be sold by the defendants to

the plaintiff. The defendants opposed the aforesaid suit and also filed

counter-claim seeking possession of the suit property from the plaintiff. The

defendants denied the agreement in question as well as three earlier

agreements and claimed that the possession of the plaintiff was illegal. The

trial Court by its judgment dated 23/01/2015 decreed the suit for specific

performance and rejected the counter-claim. The defendants being

aggrieved filed appeal under Section 96 of the Code. The Appellate Court

observed that the trial Court while recording the evidence of witnesses had

passed an order that the objections with regard to the admissibility of the

agreements at Exhibits-41, 45, 46 and 49 would be considered when the

arguments were finally heard. It found that without considering those

objections, the suit came to be decided. Hence the appellate Court by the

impugned judgment remanded the proceedings to the trial Court for fresh

adjudication. Being aggrieved the present appeal has been filed.

226-J-AO-8-13 3/5

3. Shri M. I. Dhatrak, learned counsel for the appellant submitted

that the Appellate Court exceeded its power under provisions of Order XLI

Rule 23-A of the Code by directing remand of the proceedings. According to

him the parties had led evidence before the trial Court and if the objections

to the admissibility of the documents was not decided then the remand ought

to have been made only for said purposes. There was no need to remand

the entire proceedings for being decided afresh. According to him the scope

for remand of the proceedings was limited as held in P. Purushottam Reddy

and anr. vs. Pratap Steels Ltd. (2002) 2 Supreme Court Cases 686. He

submitted that the Appellate Court itself could have considered the

objections and thereafter decided the appeal. He therefore submitted that

the impugned judgment was liable to be set aside.

4. Per contra Shri S. S. Bhalerao, learned counsel for respondent

Nos.2 to 4 supported the impugned judgment. According to him the trial

Court while recording deposition of the parties had specifically noted that the

objections to the admissibility of the agreements would be decided when the

suit was finally heard. The Appellate Court having found that this was not

done, rightly remanded the suit for fresh decision. He submitted that the

defendants had filed counter-claim seeking possession of the suit property

and it was their case that the aforesaid agreements did not give any right to

the plaintiff to seek specific performance. He therefore submitted that there

226-J-AO-8-13 4/5

was no reason to interfere with the impugned order.

5. I have heard the learned counsel for the parties at length and I

have perused the documents filed on record. The question that arises is

whether the Appellate Court was justified in remanding the proceedings for

fresh trial. Perusal of the record of the trial Court indicates that when

witness No.3 of the plaintiff was being examined, the defendants raised

objection to the agreements at Exhibits-41, 45, 46 and 49 on the ground that

without impounding the same they could not be read in evidence. The trial

Court passed an order to the effect that these objections would be decided

when the suit would be finally heard. However while deciding the suit these

objections were not decided by the trial Court. The Appellate Court on

noticing this aspect of the matter remanded the proceedings for fresh

adjudication.

6. It is to be noted that the suit for specific performance is based on

the aforesaid agreements at Exhibits-41, 45, 46 and 49. The defence of the

defendants as well as the basis for the counter-claim for possession is also

based on the aforesaid documents. These documents therefore go to the root

of the dispute. The Appellate Court further found that the applications at

Exhibits-43 and 62 filed by the plaintiff for impounding these documents had

been rejected by the trial Court. It is obvious that the trial Court decided the

226-J-AO-8-13 5/5

suit oblivious of its earlier orders and the legal effect thereof. In this

backdrop I do not find that the Appellate Court committed any error while

directing the trial Court to decide the suit afresh.

7. In P. Purshottam Reddy (supra) the Honourable Supreme Court

has considered the scope of the power of remand under provisions of Order

XLI Rule-23-A of the Code. It has been held that if the Appellate Court finds

that the trial Court has not disposed of the case satisfactorily, the power of

remand could be exercised. In the facts of the present case, when the

dispute with regard to admissibility of the documents at Exhibits-41, 45, 46

and 49 was specifically raised and was postponed for decision along with the

suit and the same not having been done, the order passed by the Appellate

Court, in my view, does not deserve to be interfered with.

8. As a result of aforesaid discussion, the appeal stands dismissed.

The parties shall appear before the trial Court on 10/04/2017. Considering

the fact that the appellant is a senior citizen and the suit was filed in the year

2012, the suit shall be decided expeditiously and by the end of August 2017.

The record and proceedings be sent to the trial Court forthwith. Order

accordingly. There would be no order as to costs.

JUDGE Asmita