Bombay High Court
Keshav @ Nanaji Rangnath Eratwar ... vs Dattu @ Dattatray S/O Rangnath ... on 15 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.118 OF 2013
APPELLANTS: 1. Keshav alias Nanaji Rangnath Eratwar -
(ORIG. Major : 66 years, Occupation Business &
DEFENDANTS)
Cultivation;
(ON RA)
2. Maheshkumar Keshavrao Eratwar -
Major : 36 years, Occupation Business &
Cultivation;
3. Rajesh Keshavrai Eratwar - Major : 39
years, Occupation Business &
Cultivation;
4. Smt. Lalitabai Keshavrao Eratwar -
Major : 50 years, Occupation Business &
Cultivation;
1 to 4 - All Resident of Ganesh Ward
No. 1, Near Hanuman Temple, At Post &
Tahasil Sindewahi, District
Chandrapur).
5. Sou. Sunita Yuvraj Borkar - Major : 41
years, Occupation Household and
Cultivation;
6. Sou. Chanda Raju Borkar - Major : 38
years, Occupation Household and
Cultivation;
5 & 6 - Both Resident of Jatpura
(Tukum), At Post & Tahasil Sindewahi,
District Chandrapur).
-VERSUS-
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RESPONDENT: Dattu alias Dattatray S/o Rangnath
PLAINTIFF Eratwar, Major : 59 years, Occupation-
(Plaintiff No.1 Business & Cultivation, At Post and
on RA)
Tahasil Sindewahi, District Chandrapur.
Shri B. N. Mohta, Advocate for the appellants.
Shri D. G. Patil, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 15, 2018.
ORAL JUDGMENT :
1. The appellants have moved civil applications
seeking interim directions. However, considering substantial
question of law No.2 with regard to which the legal position
stands settled, the appeal is taken up for hearing.
2. Substantial question of law No.2 reads as
under:
Whether the appellate Court was justified in
rejecting the application filed under provisions of Order
XLI Rule 27 of the Code of Civil Procedure, 1908 (for
short, the Code) before taking upon the appeal for final
consideration?
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3. The respondent No.1 is the original plaintiff who
had filed suit for partition, separate possession and
permanent injunction. The trial Court by its judgment dated
29-4-2006 decreed the suit and directed the suit property to
be partitioned. Being aggrieved the defendants filed appeal
under Section 96 of the Code. In that appeal, the defendants
filed an application for permission to file documents. This
application was purportedly under provisions of Order XLI
Rule 27 of the Code. The application was opposed and the
appellate Court by order dated 8-4-2008 rejected that
application. The appeal was thereafter dismissed on merits
as per judgment dated 4-12-2012.
4. It is submitted by Shri B. N. Mohta, learned
Counsel for the appellants that in the light of the law laid
down by the Hon'ble Supreme Court in Union of India Vs.
Ibrahim Uddin and another (2012) 8 SCC 148, the
application seeking permission for leading additional
evidence ought to have been considered alongwith the appeal
and not prior thereto. By deciding the application much prior
to deciding the appeal, the impugned judgment stands
vitiated as observed in the aforesaid decision. On this ground
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the impugned judgment deserves to be set aside.
5. These submissions are opposed by Shri D. G. Patil,
learned Counsel for the original plaintiff on the ground that
the rejection of that application for leading additional
evidence is in accordance with law.
6. Perusal of the decision in Ibrahim Uddin and
another (supra) indicates that the application for leading
additional evidence has to be considered when the appeal is
taken up for hearing. In para 52 of the said decision, it has
been held that when such application is considered and
decided prior to the hearing of the appeal, the order in that
regard would be unsustainable. In that view of the matter,
substantial question of law No.2 is answered by holding that
consideration of the application for leading additional
evidence prior to hearing the appeal itself has vitiated the
impugned judgment. On this count, the appeal is required to
be reconsidered afresh on its own merits.
7. The appellants have filed Civil Application
No.1431/2017 seeking interim relief. This application can
be pursued by the appellants before the first appellate Court.
Similarly, Civil Application No.828/2014 for leading the
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additional evidence can also be considered by the first
appellate Court on its own merits.
8. Accordingly, the following order is passed:
(1) The judgment of the first appellate Court in
Regular Civil Appeal No.137/2006 dated 4-12-2012 is set
aside. The proceedings are remanded to the first appellate
Court for fresh consideration in the light of observations
made herein above. As per reply filed to Civil Application
No.1430/2017, the original plaintiff has stated that he does
not desire to alienate, transfer or create third party interest in
the suit property.
(2) The application for interim relief can be pursued
before the appellate Court which shall decide the same on its
own merits and in accordance with law.
(3) Hearing of the appeal is expedited. The appeal
shall be decided by the end of June, 2018. The parties shall
appear before the first appellate Court on 29-1-2018. It is
made clear that the appeal shall be decided on its own merits
without being influenced by any observations made in this
order.
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(4) Record and proceedings be sent back forthwith.
(5) The Second Appeal is allowed in aforesaid terms.
JUDGE
/MULEY/
