Bombay High Court
Shri Padmakar S/O Haribhau ... vs Shri Babarao S/O Ganpatrao Thool on 12 August, 2021
Bench: S. M. Modak
10.SA.159.2021. 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.159/2021
Shri Padmakar s/o Haribhau Nagarale Vs. Shri Babarao s/o Ganpatrao Thool
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Ms.V.A. Dhobale, Advocate for the Appellant.
Shri U.J. Deshpande, Advocate for the Respondent.
CORAM : S.M. MODAK, J.
DATE : 12th AUGUST, 2021.
I have heard the learned Advocate for the
appellant/original defendant. Learned Advocate for the
respondent/plaintiff also appeared as he was served in delay
condonation application.
Today, the matter is fixed for admission. The plaintiff's
suit for removal of encroachment and possession was decreed by the
trial Court. Though the defendant filed written statement,
subsequently he remained absent. Trial Court decreed the suit on the
basis of available evidence. The defendant have got an explanation to
offer for not attending the trial Court. He was sick.
He filed Regular Civil Appeal No.12/2015. The first
Appellate Court framed necessary points for determination. Then
dismissed the appeal. The first Appellate Court has discussed the
evidence. On the point of explanation offered by the defendant for his
absence, first Appellate Court has also expressed his opinion.
In this second appeal it is submitted on behalf of the
appellant that he went before the first Appellate Court only with a
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limited request for remanding the matter to the trial Court. Similar
request is made before this Court.
Learned Advocate for the plaintiff/respondent opposed
the admission of the present appeal as no substantial question of law
is involved. In support of his contention on the point of scope of
second appeal, he relied upon a judgment in case of Dinesh Kumar
Vs. Yusuf Ali reported in (2010) 12 SCC 740. According to him, the
power of remand has not to be exercised in usual manner. For that
purpose, he relied upon a judgment in case of Shivkumar and Others
Vs. Sharanabasappa and Others reported in 2020 SCC OnLine SC 385.
It is true that even though defendant has not adduced
any evidence, he can certainly challenge the judgment under Section
96 of the Code of Civil Procedure, 1908. He can very well agitate that
the evidence adduced by the plaintiff is inadequate and insufficient.
The copy of memo of first appeal is filed. One of the grounds taken in
the appeal memo of appeal as--
"that the learned lower Court wrongly held the ownership of
the disputed plot in favour of the respondent without going
through the case of the appellant and came to wrong
conclusion"
I have read the judgment of the first Appellant Court.
What I find is that the first Appellate Court appreciated the evidence
as well as also commented on the conduct of the defendant in not
attending before the trial Court. The observation of the first Appellate
Court finds place in paragraphs 22 to 25. The first Appellate Court
gave observation--
"the defence is not specific regarding the period of his illness
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that has moved the learned lower Court to exercise his rights
of cross-examination and adducing evidence (para 25)".
It is an admitted fact that the defendant has not filed any
document before the first Appellate Court about his illness. It is
submitted that documents have been supplied to the learned
Advocate by the defendant, however, he has not filed it and
defendant should not suffer for that.
My attention is also brought to special pleadings of
defendant in the written statement. Defendant has pleaded that he
has agreed to purchase the property as per Issarchitthi dated 23 rd
March, 1989 from one Dharmadas Marotrao Fulzele and since then
he is in possession. It is submitted that the sale-deed of the plaintiff is
dated 25th June, 1991 and that is latter in point of time. The
defendant wants to suggest that he is not encroacher but a lawful
occupant of the plot of the land. These contentions are denied by
learned Advocate for the plaintiff and it is submitted that sufficient
evidence has been adduced before the trial Court including the
evidence of T.I.L.R. (who is material witness in case of
encroachment).
After considering the above submissions, I am not
inclined to admit this appeal because I find that no substantial
question of law is involved. The first Appellate Court can certainly
remand the matter as per the provisions of Order XLI, Rule 23 or Rule
23-A of the C.P.C., but it has been held in number of cases that the
power of remand is to be exercised not in a routine manner.
The first Appellate Court could have justified in
remanding the matter provided the defendant who could have made
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the ground before the Appellate Court by producing documents
showing his absence before the trial Court. He could have succeeded
in praying for remand if he could have sufficiently pointed out
insufficiency of evidence adduced by the plaintiff. If the judgment of
the first Appellate Court is read, I do not think that the first Appellate
Court committed error in not remanding the matter. The contention
raised about not producing the documents of medical illness by the
learned Advocate for the defendant before the first Appellate Court
could have been considered if the case to that effect could have been
made out by supporting materials. I hold that this is not the fit case,
so I do not find any merit in this appeal.
Hence, the appeal is dismissed.
Civil Application (CAS) No.969/2019
Learned Advocate for the appellant prayed for staying the
judgment under execution. It is opposed by learned Advocate for the
respondent.
The judgment of the trial Court as well as the first
Appellate Court is stayed for two months.
The civil application is disposed of.
JUDGE
vijay
