Bombay High Court

Ajay S/O Shripal Jain & Ors vs Sanjay S/O Parmeshwar Jain on 14 November, 2017

Bench: V.M. Deshpande

Judgment

                                                        second appea190.09 24 

                                       1

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

                   SECOND APPEAL NO.190 OF 2009

1. Ajay s/o Shripal Jain,
Aged about 53 years,
Occupation Chartered Accountant,
R/o Jatharpeth, Akola,
Taluka and District Akola.

2. Sau. Kiran w/o Arihand Jain,
Age 55 years, Occupation Medical Practitioner,
R/o United States of America.

3. Sau. Charu w/o Uday Mahorkar,
Age about 61 years,
Occupation Medical Practitioner,
R/o Dhantoli, Nagpur.

4. Smt. Pramila wd/o Shripal Jain,
(Since Dead), Represented by Appellant
Nos.1 to 3 as legal representatives.                ..... Appellants.

                                ::   VERSUS   ::

1. Sanjay s/o Parmeshwar Jain,
Aged about 47 years, Occupation Business,
R/o Jain Nursing Home,
New Sanjivani Medical Stores,
Washim Stand, Akola,
Taluka and District Akola.                             ..... Respondent.



                                                                         .....2/-



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 Judgment

                                                           second appea190.09 24 

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           Shri A.R. Patil, Counsel for the appellants.
           Shri A.S. Mehadia, Counsel for respondent.
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                                CORAM : V.M. DESHPANDE, J.

                                DATE    :  NOVEMBER 14, 2017.

ORAL JUDGMENT

1. Heard learned counsel Shri A.R. Patil for the

appellants and learned counsel Shri A.S. Mehadia for the

respondent.

2. On 28.8.2009 this second appeal was admitted on

the following substantial questions of law:

"(1) Is the exclusive possession the only criteria to decide whether the occupation is that of licencee or a tenant?

(2) Was it proper on the part of the learned appellate Judge to have said that it was not necessary for him to read the entire evidence in detail particularly when first appeal is on facts?"

3. The present appellants filed a special civil suit

.....3/-

Judgment

second appea190.09 24

against the respondents for possession and recovery of

damages. The said suit was contested by the respondents.

Various issues were framed by learned Judge of the Trial

Court. Plaintiffs examined two witnesses namely Ajay s/o

Shripal Jain and Dinkar V. Bunde. The defendant also

entered into the witness box. Sanjay s/o Parmeshwar Jain as

DW1; Abhay s/o Prabhakar Nimbalkar as DW2; Parmeshwar

Gulabchand Jain as DW3; Sk. Rashid Sk. Heusen as DW4;

Jugalkishore Ballabhdlal Jaiswal; Sherkhan Sujatkhan;

Jagdishchandra Gulabchand Singhai, and Pratapchandra

Singhai were examined. The evidences of these witnesses are

filed on record. Each of witnesses of either side was

thoroughly cross-examined in order to test the veracity of

their evidences.

4. Learned Civil Judge Senior Division at Akola vide

judgment dated 18.8.2005 decreed the suit and thereby

directed that the defendant shall hand over the vacant

.....4/-

Judgment

second appea190.09 24

possession of the suit rooms as described in paragraph No.1 of

the plaint to the plaintiffs within a period of four months from

the date of order. Enquiry into future mesne profit was also

ordered.

5. The defendant being aggrieved by such judgment

and decree, preferred Regular Civil Appeal No.109 of 2005

under Section 96 of the Code of Civil Procedure. Various

grounds were taken to set up challenge to the impugned

judgment and decree of possession. The appeal was heard in

detail by the Lower Appellate Court. The Lower Appellate

Court also formulated 10 points.

6. With the assistance of learned counsel Shri A.R.

Patil for the appellants and learned counsel Shri A.S. Mehadia

for the respondent, I have gone through the judgment

delivered by the Lower Appellate Court. The Lower Appellate

Court has described the facts in the judgment and, thereafter,

.....5/-

Judgment

second appea190.09 24

he has formulated the points. No doubt, the reasoning is also

supplemented by the Lower Appellate Court. However, in my

view, the present second appeal must succeed on question

No.2 that was formulated as substantial question of law on

28.8.2009 inasmuch as learned Judge of the Lower Appellate

Court himself has observed in paragraph No.18 of the

judgment as under:

"Now, it is not necessary for me to read the evidence of each and every witness in great details."

Not only that, perusal of the impugned judgment

shows that there is no application of mind and the evidences

of witnesses examined by the parties were not given due

weightage also.

7. Learned counsel Shri A.R. Patil for the appellants

invites my attention to the law laid down by the Honourable

Apex Court in the case of Laliteshwar Prasad Singh and ors

.....6/-

Judgment

second appea190.09 24

..vs.. S.P. Srivastava (Dead) through legal representatives,

reported at (2017)2 SCC 415 in respect of Section 96, Order XLI

Rule 31 and Order XX Rule 5. The aforesaid Apex Court's

decision has also considered the earlier decision of the

Honourable Apex Court.

8. The Honourable Apex Court in the case of Vinod

Kumar ..vs.. Gangadhar, reported at (2015)1 SCC 391 in

paragraph No.10 of the said judgment has also considered the

judgment in the case of Kurian Chacko ..vs.. Varkey Ouseph,

reported at AIR 1969 Kerala High Court 316. The Honourable

Justice V.R. Krishna Iyer (as his Lordship then was the Judge

of the Kerala High Court) also reproduced the observation of

the Honourable Justice V.R. Krishna Iyer as under:

"An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present

.....7/-

Judgment

second appea190.09 24

case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation."

9. The aforesaid observations are applicable in this

case with its full force. Consequently, the second appeal must

succeed. Therefore, I answer question No.2 in affirmative that

the Lower Appellate Court was duty bound to read entire

evidences in details and to deliver its judgment. Since the

Lower Appellate Court has failed to evaluate and consider

entire evidences of each of the witnesses, the appeal needs to

be remitted back to the Lower Appellate Court to decide the

same afresh in accordance with law by giving an opportunity

of hearing to the parties to the appeal.

10. Consequently, this Court passes the following

order: