Madhukar Motiramji Umarkar vs Dadarao Mahadeorao Umarkar And 2 ...
2017 Latest Caselaw 8854 Bom

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

                           Second Appeal No. 54/2016


APPELLANT:-                           Madhukar Motiramji Umarkar,
Ori. Pltf                             (wrongly typed as Umbarkar in Judgment in
                                      RCA/108/15), aged about 74 years, Occ.
                                      Agriculturist, R/o. Malviyapura, Near Vidhaly
                                      Complex, Morshi, Dist. Amravati.

Amendment carried out                 Lrs. Of Appellant
as per Court order                     i. Smt. Kamal Wd/o Madhukar Umarkar,
dated 25.01.2017                          aged about 65 years, Occ. Household,

                                      ii. Deepak S/o Madhukar Umarkar,
                                          aged about 42 years, Occ. Agricultuirst,

                                      iii. Milind S/o Madhukar Umarkar,
                                           aged about 40 years, Occ. Agriculturist,

                                      iv. Ishwar S/o Madhukarrao Umarkar,
                                           aged about 38 years, Occ. Agriculturist

                                      v. Ku. Vandana d/o Madhukarrao Umarkar,
                                         all R/o. Malviyapura, Morshi,
                                         Tq. Morshi, Dist. Amravati.



                                      VERSUS

RESPONDENT:-             1.           Dadarao Mahadeorao Umarkar,
Org. Defts.                           (wrongly typed as Umbarkar in Judgment
                                      in RCA/108/15), aged about 81 years Occ.
                                      Nil.(Deleted as per Court's order dated
                                      06.06.2017.)

                         2.           Baburao Mahadeorao Umarkar,
                                      (wrongly typed as Umbarkar in Judgment
                                      in RCA/108/15), aged about 76 years, Occ.
                                      Nil.
                                      1 & 2 R/o. Simbhora, Post Pardi,
                                      Tq. Morshi, Dist. Amravati.




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                             3.            Subhash Mahadeorao Umarkar,
                                           (wrongly typed as Umbarkar in Judgement
                                           in RCA/108/15), aged about 68 years,
                                           Occ. Agriculturist, R/o. Chaya Nagar,
                                           Morshi, Dist. Amravati.




Smt. S.W. Deshpande, Advocate for appellants
Shri. K.N. Dadhe, Advocate for respondent Nos. 1 & 2.
_____________________________________________________________________________________




                           CORAM :     V.M. DESHPANDE, J.

                           DATED  :     NOVEMBER 20, 2017

Oral Judgment:

On 29th September, 2017, this Court after hearing parties to this second appeal, formulated following substantial question of law:-

"Whether the trial Court was legally justified in deciding the issue as to limitation as well as the bar on principles of res judicata without grant of opportunity to the parties to lead evidence?"

2. By consent of the parties, this second appeal is taken up for final hearing.

3. Appellant, Madhukar Motiramji Umarkar, who died during the pendency of the present second appeal and whose legal representatives are brought on record, has filed Regular Civil Suit No. 11/2008. The said suit was for declaration to the effect that the house property to be partitioned as per pending execution proceeding bearing Regular Execution No. 16/1996

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is not liable for partition and sought for further declaration, that said execution proceedings are not binding on him and also sought second relief of injunction.

4. The learned Civil Judge, Junior Division, Morshi on 31.07.2010 passed order below Exhibit-1, thereby, the learned Trial Judge dismissed the suit with costs. Original Plaintiff, Mahudkar S/o Motiramji Umarkar, thereafter, preferred Regular Civil Appeal No. 158/2010. The learned Principal District Judge, Amravati, vide judgment and decree dated 13.03.2015 allowed the appeal partly. By allowing the appeal partly, the order passed by the learned Judge of the Trial Court dated 31.07.2010 below Exhibit-1 was set aside and the suit was remanded to the Trial Court. While remanding the matter, the learned Judge of the Appellate Court himself framed issues and directed the learned Judge of the Trial Court to decide the issue in accordance with law.

5. After such remand, the learned Civil Judge, Junior Division, Morshi on 16.06.2015 framed the issues as directed by the learned Appellate Court and decided the suit vide judgment and decree dated 29.07.2015. This time also, the suit filed by the plaintiff was dismissed.

6. That, required the original plaintiff, Mahudkar S/o Motiramji Umarkar to approach afresh before the learned Principal District Judge and this time his appeal was registered as Regular Civil Appeal No. 108/2015 and the learned Principal District Judge, Amravati on 08.01.2016, dismissed the appeal, thereby , confirmed the judgment and decree of the learned Trial Court dismissing the suit. Hence, this second appeal.

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7. After hearing the learned counsel for the appellant, Smt. S. W. Deshpande and learned counsel for the respondents, Shri K.N. Dadhe, it appears to this Court that the opportunity of adducing evidence was not given to the appellant. The question of limitation is mixed of question of fact and law. In that view of the matter when the Court is pronouncing the verdict that the suit is barred by limitation, it is expected that Court should give opportunity to the parties to adduce evidence in that behalf.

8. Further, Shir K.N. Dadhe, learned counsel for the respondents submits that the respondents have no objection if the matter is remanded on both the question of limitation as well as on the question of res judicata. However, he submits that the Trial Court be directed to decide the suit within stipulated time.

9. In view of the aforesaid, the judgment and decree passed by the learned Civil Judge, Junior Division, Morshi on 29.07.2015 in Regular Civil Suit No. 11/2008 with judgment passed by the learned Principal District Judge, Amravati in Regular Civil Appeal No. 108/2015 dated 08.01.2016 are hereby set aside.

10. Regular Civil Suit No. 11/2008 is restored to file. The learned Civil Judge, Junior Division, Morshi is directed to give the opportunity to parties to the said suit to adduce the evidence and hearing on the issue framed on 16.06.2015 and shall decide the suit in accordance with law within a period of six months from today. The parties undertake to appear in Court of Civil Judge, Junior Division, Morshi on 11 th December, 2017. The learned Trial Court is directed to decide the suit in accordance with law within a period of six months from the date of appearance of the parties it.

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11. Plaintiff as well as defendants shall not unnecessarily try to prolong the hearing of the suit. If the Trial Court finds that the parties are unnecessarily trying to prolong and protract the litigation, then it will be open for the said learned Judge to pass appropriate order.

12. With this question of law formulated on 29 th September, 2017 is answered in affirmative. Second Appeal is allowed , however, there shall be no order as to costs.

JUDGE Gohane