Sarjabai Wd/O Narayanrao Manmode ... vs Dhanraj S/O Pandurang Manmode
2017 Latest Caselaw 6849 Bom

                                               1




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



Appeal against Order No. 32 of 2017 

Appellants             :          1)  Sarjabai wd/o Narayanrao Manmode

                                  (deceased)

                                  2) Smt Shewantibai w/o Jagannath Phate, 

                                  aged about 55 years, Occ: Household, 

                                  resident of Khapa, Tahsil Narkhed, District 

                                  Nagpur

                                  3) Smt wasumati w/o Namdeorao Kadwe, aged

                                  about 30 years, Occ: Household, resident of 

                                  Agargaon (Sawali), Tahsil Karanja, District 

                                  Nagpur

                                  versus

Respondent             :          Dhanraj son of Pandurang Manmode, aged

about 30 years, Occ: Cultivator, resident of

Manikwada, Tahsil Ashti, District Wardha

Shri S. Dharaskar, Advocate for appellant

Shri V. T. Deshpande, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 6th September 2017

Oral Judgment

1. Heard. Admit. Heard finally by consent.

2. This appeal challenges the judgment dated 5 th November

2014 rendered in Regular Civil Appeal No. 107 of 2000 directing remand

of suit to the trial Court for a decision afresh in accordance with law after

giving opportunity of adducing evidence to the parties.

3. Civil Suit being Special Civil Suit No. 135 of 1996 was filed

by the appellant against the respondent. By this suit, partition and

separate possession of the suit property was claimed. Declaration was also

sought against the respondent that the Will dated 23.10.1990 was illegal,

null and void. It was this will on the basis of which the defendant was

claiming ownership in respect of suit property mentioned in Schedule A to

the plaint.

4. As the suit proceeded, no instructions pursis was filed by the

Advocate for the respondent on 29.6.1999 and it came to be accepted by

the trial Court and thereafter the suit was proceeded further in the

absence of the respondent in terms of Order 17, Rule 2 of the Code of

Civil Procedure. Suit came to be partly decreed on 23.11.1999. The

respondent being aggrieved by the judgment and decree, filed an appeal

being Regular Civil Appeal No. 107 of 2000 before the Court of District

Judge, Wardha. After hearing both sides, learned District Judge found

that the judgment and decree rendered in the suit by the trial Court were

no judgment and decree in the eye of law as the respondent/original

defendant was deprived of the opportunity to lead evidence in his

defence. Learned Adhoc District Judge, Wardha by the judgment and

order dated 5.11.2014 remanded the suit back to the trial Court for its

trial and decision afresh. Being aggrieved by the same, the appellants/

original plaintiffs are before this Court in the present appeal.

5. I have learned counsel for the parties. I have gone through

the paper book of this appeal including the impugned judgment and

order.

6. It is the contention of learned counsel for the appellants that

the 1st appellate court ought not to have exercised its power under Order

41, Rule 23-A of the Code of Civil Procedure in the present case, for it was

possible for the 1st appellate court to decide the appeal on merits on the

basis of evidence available on record. He submits that ample

opportunities were given to the defendant/respondent to lead evidence

which he did not avail of and, therefore, giving of yet another opportunity

to the respondent to lead evidence would cause great hardship to the

appellant and not only that the remand of the suit would have the

effect of unsettling the rights vested in the appellant by virtue of grant of

decree by the trial Court. He submits that the remand power under Order

41, Rule 23A of the CPC must be exercised sparingly and in the

extraordinary circumstances. According to him, this was not a case

where extraordinary circumstances for exercise of such a power existed.

He places reliance upon the judgment of th learned single Judge of this

Court in the case of Beniram Shriram Wani, through his LRs v.

Ramchandra Nathalal Gujarathi & ors reported in 2011 (3) Mh. L. J.

545.

7. Learned counsel for the respondent submits that paragraph 9

of the impugned judgment and order is relevant as it summarises the

central issue involved in this case in a succinct manner. He submits that

no instructions pursis filed by learned counsel for the respondent before

the trial Court was accepted by the trial court without following the

procedure as prescribed in paragraph 660 (4) of the Civil Manual and,

therefore, it fundamentally affected the right of the respondent to prove

his defence in the case. He, therefore, submits that there is no need for

interference with the impugned judgment.

8. In view of above, the following two questions arise for my

consideration :

(1) Whether the respondent was deprived of adequate

opportunity of proving his defence ?

(2) Whether the 1st appellate court could have decided the appeal

on the basis of evidence available on record ?

9. On perusal of the impugned judgment and order as well as

considering the admitted facts, I am of the view that in the present case,

there has been deprivation of adequate and proper opportunity to the

respondent to lead evidence in his defence and in the absence on record

of the case the material evidence to enable the 1 st appellate court to

properly decide the contentious issues involved in the suit, the appellate

court had no option but to remand the suit.

10. It is not in dispute that initially the respondent was

represented by his Advocate and who suddenly on 29.6.1999 filed no

instructions puris on record of the suit before the trial Court vide exhibit

24. It is also not in dispute that later on the suit was directed to be

proceeded in the absence of respondent in terms of Order 17, Rule 2 of

the Code of Civil Procedure. This would mean that the trial Court had

accepted the no instructions pursis vide exhibit 24 filed on record by the

then learned counsel for the respondent. It would also mean that the trial

Court had permitted the then learned counsel for the respondent to

withdraw his appearance from the case. Now, the question that arises is,

whether such permission could have been granted by the trial Court or

not. Certainly, grant of such permission was well within the powers of

the trial Court, but then the principles of natural justice, which are part of

the fundamental right of a party, would require that such a party is put

on adequate notice of the proposed move of its advocate. In the instant

case, admittedly, no notice of the intention of learned counsel for the

respondent to withdraw his appearance was given to the respondent. It is

also an admitted fact that the trial Court on its own did not issue notice to

the respondent regarding filing of no instructions pursis by the Advocate.

If the respondent was not intimated about the intention of his Advocate to

withdraw his appearance from the suit, the respondent would have to be

said to be deprived of his right to either appear before the trial Court in

person or through some other arrangement so that his defence was well

taken care of. If the respondent did not know anything about such a

move made by his advocate, naturally the respondent would take no

blame for not making any alternate arrangement for defending his

interest in the suit. But, the trial Court thought otherwise, though the

violation of the basic and fundamental right of the respondent of being

afforded a fair opportunity of defending himself, was as clear as sunshine.

11. There is a similar procedure prescribed under the provisions

of Paragraph 660 of the Civil Manual. Sub-para (4) of Paragraph 660 of

the Civil Manual being relevant is reproduced thus -

"(4) When an Advocate who has filed a Vakalatnama for a

party wishes to withdraw his appearance, he shall serve a

written notice of his intention to do so on his client at least

seven days in advance of the case coming up for hearing

before the Court. Leave of the Court to withdraw

appearance may also be applied for if the client has

instructed the Advocate to that effect The Advocate shall

file a note in writing requesting the Court for permission to

withdraw appearance and shall also file along with the note

the letter or the client instructing him to withdraw his

appearance or a copy of the intimation given to the client as

above together with its written acknowledgment by the

client. The Court, if it is satisfied that no inconvenience is

likely to be caused to the Court or the client may permit the

Advocate to withdraw his appearance and while permitting

the Advocate to do so may also impose such terms and

conditions as it may deem proper either in public interest or

in the of the parties."

12. A bare reading of the above provisions of the Civil Manual

would indicate that what they do is only giving effect to the fundamental

right of a party regarding his being afforded a reasonable and adequate

opportunity of being heard. This fundamental right flows from Articles 14

and 21 of the Constitution of India. Learned counsel for the appellant

nevertheless submits that the provisions of paragraph 660 of the Civil

Manual are only directory in nature and not mandatory. The argument,

however, does not stand to the scrutiny of law in view of the fact that this

provision is incorporated in sub-paragraph 4 of paragraph 660 of the Civil

Manual only to protect fundamental right of being heard available to

a party. Therefore, it cannot be said that this provision of Civil Manual is

only directory in nature. It is rather mandatory, because it gives a

concrete shape to the abstract fundamental right of hearing being

granted to a party before any decision adverse to it's interest is taken.

The argument of learned counsel for the appellant is, therefore, rejected.

13. So, it is clear that in the instant case, there has been

deprivation of reasonable opportunity of being heard to the respondent

and, therefore, the whole trial of the suit was vitiated and as such, the

judgment and decree passed by the trial Court will have to be said as no

judgment and decree in the eye of law. It then follows that it was not

possible for the 1st appellate court to proceed to decide the appeal on its

own merit on the basis of whatever evidence was there on record.

14. The facts and circumstances discussed above would only

show that this was a rare case in which exercise of remand power by the

1st appellate court became necessary, as is the view taken by the learned

single Judge of this Court in the case of Beniram v. Ramchandra (supra)

based upon the law settled by the Hon'ble Apex Court in umpteen number

of cases including the case of P. Purushottam Reddy v. M/s Pratap

Steels Ltd. reported in AIR 2002 SC 771. In the circumstances, I find

that as there had been deprivation of adequate opportunity of hearing to

the respondent; remand of the suit was necessary and the 1 st appellate

court rightly exercised such power vested in it by the provisions of Order

41, Rule 23-A of the Code of Civil Procedure. Both the points are

answered accordingly.

15. In the result, I fine, there is no merit in this appeal. Appeal

stands dismissed. Parties to bear their own costs.

S. B. SHUKRE, J

joshi