Ramdas Jairamji Zade vs Ashok Ramdas Zade And Others
2018 Latest Caselaw 1084 Bom

25-J-SA-72,168-16                                                                    1/4


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

                            SECOND APPEAL NO.72 OF 2016
                                          

Ramdas Jairamji Zade 
Aged 72 years, Occ. Clerk to Advocate, 
R/o Umrer Tah. Umrer, Dist. Nagpur                        ... Appellant
-vs- 
Ashok Ramdas Zade, 
Aged 43 years, Occ. Business, 
R/o Mangalwari Peth, Jeevan Vikas Chowk, 
Umrer, Tah. Umrer, Dist. Nagpur.                          ... Respondent. 
 

                            SECOND APPEAL NO.168 OF 2016
                                           

Ramdas Jairamji Zade 
Aged 72 years, Occ. Clerk to Advocate, 
R/o Umrer Tah. Umrer, Dist. Nagpur                        ... Appellant
-vs- 
1.  Ashok Ramdas Zade, 
     Aged 43 years, Occ. Business, 
    
2.  Archana w/o Ashok Zade,
     Aged 37 years, Occ. Household, 
     Both R/o Mangalwari Peth, Jeevan Vikas Chowk, 
     Umrer, Tah. Umrer, Dist. Nagpur. 

3.  Assistant Engineer,
     Maharashtra State Electricity Board, 
     Umrer, Dist. Nagpur.                                 ... Respondents.  


Shri P. A. Markandeywar, Advocate for appellant. 
Shri A. S. Dhore, Advocate for respondent Nos.1 and 2. 
Respondent No.3 served. 




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 25-J-SA-72,168-16                                                                              2/4


                                       CORAM  :  A.S.CHANDURKAR, J.  

                                       DATE     :   January 29, 2018


   Common Judgment :  

Since an identical question arises in both these appeals, they are

being decided by this common judgment. The following substantial

question of law arises for consideration :

" In the light of directions issued in W.P.No.2612/2012 by order

dated 07/08/2013, whether the first appellate Court committed an

error in failing to decide the application seeking additional evidence ?"

2. In Second Appeal No.168/2016 the appellant is the original plaintiff

who had filed suit for mandatory injunction praying that defendant Nos.1

and 2 being the son and daughter-in-law of the plaintiff be directed to

vacate the suit block. According to the plaintiff the suit property was his

self acquired property and the defendant Nos.1 and 2 being in permissible

possession could not continue to reside against his wishes. The trial Court

decreed the suit. In the appeal preferred by defendant Nos.1 and 2 the

said defendants sought to lead additional evidence by moving application

under provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908

(for short, the Code). This application below Exhibit-66 came to be

rejected and said order was challenged by preferring writ petition in this

Court. While disposing of the writ petition, the appellate Court was

25-J-SA-72,168-16 3/4

directed to decide that application along with appeal. The appellate

Court by the impugned judgment allowed the appeal and dismissed the

suit.

3. In Second Appeal No.72/2016 the respondent is the original plaintiff

who had filed suit for declaration that he had right, title and interest in the

suit property along with permanent injunction. According to him in the

partition held in the year 1991, the suit property was allotted to him. This

suit was dismissed by the trial Court. In the appeal the original plaintiff

filed an application below Exhibit-27 for leading additional evidence. This

application was rejected and in the writ petition challenging said order,

the said application was directed to be considered along with the appeal.

The appellate Court allowed the appeal of the original plaintiff and partly

decreed the suit. Hence the aforesaid appeals.

4. It is not necessary to enter into merits of adjudication on the ground

that in Writ Petition No.2612/2012 this Court had directed that the

applications for leading additional evidence that were filed by the

appellant before the first appellate Court should be decided along with the

appeal. Perusal of judgment of the first appellate Court indicates that

there is no consideration of these applications by the first appellate Court.

In view of the law laid down by the Honourable Supreme Court in case of

25-J-SA-72,168-16 4/4

Union of India vs. Ibrahim (2012) 8 SCC 148, these applications were

required to be decided along with the appeal. Having failed to do so, the

appellate Court committed an error and hence the impugned judgments

are liable to be set aside. The substantial question of law is accordingly

answered by holding that failure to decide the applications under Order

XLI Rule 27 of the Code has vitiated the impugned judgments.

5. In view of aforesaid, the following order is passed :

(i) The judgments of first appellate Court in R.C.A.Nos.180/2007 and

194/2007 are quashed and set aside.

(ii) Both the appeals are remanded to the first appellate Court for being

decided together in accordance with law. Both the appeals shall be

decided expeditiously. The parties shall appear before the first

appellate Court on 21/02/2018

(iii) The applications seeking permission to lead additional evidence shall

be considered along with the appeals. The respective contentions of

the parties on merits are kept open.

(iv) The Second Appeals are partly allowed in aforesaid terms. No order

as to costs.

JUDGE Asmita