Smt. Dwarkabai W/O Govind ... vs Tukaram S/O Shiva Bahekar And ...
2017 Latest Caselaw 7898 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                 Misc. Civil Application No. 1147 of 2017
                                     IN
                        Second Appeal No.233 of 2001


 1.      Smt. Dwarkabai wife of Govind
         Muneshwar,
         aged about 47 years,
         occupation - Household,

 2.      Smt. Janabai wife of Yashwantrao
         Gaidhane
         aged about 53 years,
         occupation - Household,

 3.      Govind son of Sitaram
         Muneshwar,
         aged about 57 years,
         occupation - cultivator,

         all residents of Dongargaon,
         Tq. Salekasa, Distt. Gondia.        .....           Applicants




                                  Versus


 1.     Tukaram son of Shiva Bahekar,
        aged about 68 years,
        occupation - Agriculturist,




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 2.     Tikaram son of Shiva Bahekar,
        aged about 63 years,
        occupation - Agriculturist,

 3.     Shriram son of Shiva Bahekar,
        aged about 57 years,
        occupation - Agriculturist,

 4.     Smt. Tulsabai widow of Shiva Bahekar,
        aged about 63 years,
        occupation - Agriculturist,

        all resident s of Dongargaon,
        Tq. Salekasa, Distt. Gondia.                 .....        Respondents



                               *****
 Mr. A. M. Sudame, Adv., for the applicants.

 Mr. Shashikant Borkar, Adv., for respondents.

                                         *****


                                     CORAM :        A.S. CHANDURKAR, J.

                                     Date       :   06th October, 2017

 ORAL JUDGMENT:


 01.            Admit.         Heard finally with consent of counsel for the

 parties.

02. This is an application seeking review of the judgment dated

9th March, 2016 in Second Appeal No. 233 of 2001 on the ground that

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though the said appeal was admitted on substantial questions of law at

Sr. Nos. 8 to 12 in the Memorandum of Appeal, while deciding the

appeal, those questions were superseded and the appeal was decided

on fresh questions of law.

03. It is submitted on behalf of the applicants that as substantial

questions of law nos. 8 to 12 had been formulated for deciding the

appeal, these questions could not have been re-framed. If the

questions were required to be re-framed, an opportunity to the

respondents in the appeal ought to have been granted as required by

provisions of Section 100 (5) of the Civil Procedure Code, 1908 [for

short, "the Code"]. In that regard, the learned counsel placed reliance

on the judgment of the Honourable Supreme Court In Sushila Vs.

Madankuwar & others [ Civil Appeal Nos. 2568-2569/2017 (Arising

out of SLP (C) Nos. 961-962 of 2017) ]; decided o 10th February, 2017.

It is submitted that though the applicants were not present when the

Second Appeal was heard, it having been heard on substantial

questions that they were not aware of, the judgment deserves to be

reviewed.

04. Shri S. Borkar, learned counsel for the non-applicants,

opposed the application and submitted that the appeal has been

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decided by answering substantial questions of law that arose in the

appeal. The applicants ought to have challenged this judgment

instead of seeking its review.

05. As per the order dated 4th December, 2001, the Second

Appeal was admitted on substantial questions of law as framed at Sr.

Nos. 8 to 12 in the Memorandum of Appeal. While deciding the Second

Appeal, it has been observed in para 3, as under:-

"3. .......In supersession of the substantial questions of law framed at the time of admission, I frame the following substantial questions of law after hearing learned counsel for the parties."

06. In Sushila [supra], the Honourble Supreme Court after

referring to provisions of Section 100 (5) of the Code has held that if

the substantial questions of law framed earlier are to be re-framed, the

parties have to be heard on that aspect and reasons have to be

recorded for doing so. Perusal of the judgment dated 9th March, 2016

does not indicate the course as prescribed by Section 100 (5) of the

Code having been followed. Hence, on this short ground, the present

application deserves to be allowed.

07. In view of aforesaid discussion, judgment dated 9th March,

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2016 in Second Appeal No. 233 of 2001 is reviewed and recalled. The

Second Appeal is restored to file for fresh adjudication on merits.

08. Application is allowed and disposed of.

Judge

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