Bombay High Court
M/S.Romell Realtors vs Maharashtra Housing And Area ... on 26 February, 2021
Bench: K.K. Tated
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.131 OF 2021
IN
FIRST APPEAL NO.1336 OF 2017
M/s.Romell Realtors .. Applicant
vs.
Maharashtra Housing & Area
Development Authority .. Respondent
.....
Mr.Girish S.Godbole i/b Ms.Merlyn Dias for the Applicant
Mr.P.G.Lad for MHADA
.....
CORAM: K.K.TATED, J.
DATED : FEBRUARY 26, 2021
(IN CHAMBER AT 2.15 P.M.)
P.C.
. Heard.
2. By this application, Applicant is seeking directions
against the Respondents original defendants to cross-
examine the witness of the Petitioner original plaintiff only
in respect of additional evidence after remand, if any, given
by the respective parties.
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3. The learned Counsel for the Applicant submits that
they fled First Appeal No.1336 of 2017 challenging the
judgment and decree dated 12.11.2016 passed by Bombay
City Civil Court at Dindoshi in S.C.Suit No.1860 of 2010
dismissing the Applicant's Suit for injunction restraining
the Respondents from interfering with physical possession
of the Applicant's plot of land admeasuring 2858.5 sq.
meters bearing CTS No.73, 73/6 to 27 (corresponding to
S.No.141/2 (pt.) of Village Maghathane and situated at
Ferreira Compound, Rajendra Nagar, Datta Pada, Borivali
(E), Mumbai together with structures thereon.
4. The learned Counsel for the Applicant submits that
during the course of arguments, both the parties decided to
fle minutes of order for setting aside the fnding given by
Trial Court on issue nos.1 to 6 and 8 so that parties can lead
their evidence. He submits that Clause No.4, 6 and 7 of the
minutes of order dated 09.09.2019 read thus:
"4. In view of this, after hearing the
respective counsels for sometime on 22/08/2019,
the hearing was adjourned to enable for the
Advocates for the Respondent to take instructions.
By further Order dated 28/08/2018, at the request
of the Advocates for the Respondent the hearing
was adjourned to enable the Advocates to take
instructions whether the Respondent is ready and
willing for a remand of the matter to the trial court
for re-hearing after giving liberty for both the
parties to lead evidence Accordingly, the Executive
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Engineer, Borivali Division, Mumbai Board of
MHADA has addressed letter dated 30/08/2019 to
the Advocate for the Respondent stating that it has
no objection for remanding the matter to the trial
court for fresh hearing. By Order dated
06/09/2019, the said letter dated 30/08/2019 has
been taken on record and marked as "X" for
identifcation.
6. In view of this, the impugned Judgement
and Decree dated 12/11/2016 passed by the Ld.
Judge of City Civil Court at Dindoshi (Borivali
Division) in S.C. No. 1860 of 2010 is partly quashed
and set aside without disturbing the fnding about
the maintainability of the Suit, which has been
recorded in favour of the Plaintiff on Issue No.7.
The fndings on Issue Nos. 1 to 6 and 8 are quashed
and set aside. The Suit is remanded for re-hearing.
Parties are at liberty to fle additional evidence if
they so desire. Parties are also at liberty to
request the Ld. Judge of the trial court to suitably
correct Issue No. 3 by pointing out that
Notifcation dated 31/10/1944 was a Notifcation
for requisition and not for acquisition.
7. Parties shall lead additional evidence, if
any, within a period of 4 months from the date on
which the parties appear before the trial court
after remand."
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5. The learned Counsel for the Applicant submits that
bare reading of the minutes of order dated 09.09.2019
shows that matter was remanded for leading additional
evidence in respect of issue nos.1 to 6 and 8 only.
Therefore, there is no question of permitting the
Respondents to cross-examine the Applicant's witness on
evidence already recorded by the Trial Court before
remanding the matter by order dated 09.09.2019. Hence,
they preferred the present application for clarifcation to
that effect.
6. The learned Counsel for the Applicant submits that in
the interest of justice, this Hon'ble Court be pleased to
clarify that the Respondents cannot cross-examine
Applicant's witness on evidence which is already recorded
before passing order dated 09.09.2019 by this court.
7. The learned Counsel for the Applicant relies on
judgment of the Rajasthan High Court, Jaipur Bench in
Niranjan Lal vs. U.I.T.,Alwar & Ors. reported in RLW
2007(1) RAJ.350. He relies on paragraph 22 which reads
thus:
"22. The purpose behind the Rules is not to initiate
de novo trial. The purpose is also not to prolong the
dispute between the parties. Since the judiciary
must endeavour to decide the dispute as soon as
possible, the appellate Court is expected to decide
the case at the appellate stage itself. Therefore, the
tendency to remand the case in toto after setting
aside the judgment of the trial Court and the
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tendency to direct a de novo trial is against the
tenor of law. The appellate Court is expected to
exercise its power within the confnes to Rules 23
to 26-A of the Code. Ample powers have been given
to the appellate Court under Rules, 27, 28 and 29
of the Code to take additional evidence and to
decide the issues re-framed by it. Since the trial
Courts are the most overburdened Courts in the
judicial hierarchy, the appellate Court, should
refrain from remanding the case in toto in a
routine manner. What can be done at the appellate
stage, need not be remanded back to the trial
Courts. After all, the buck has to stop somewhere."
8. On the other hand, the learned Counsel for the
Respondents tendered affdavit-in-reply dated 26.02.2021.
Same is taken on record. He submits that in Consent
Minutes no where it is stated that, parties cannot cross-
examine the witness on evidence which is recorded on or
before 09.09.2019. He submits that bare reading of clause
no.4, 6 and 7 of the consent minutes of order clearly shows
that, both the parties have right to cross-examine witness
on all the topics. Therefore, there is no substance in the
present interim application and same is required to be
dismissed with costs.
9. Heard.
10. It is to be noted that bare reading of the consent
minutes of order clearly shows that there is no bar for the
parties to cross-examine the witnesses on the evidence
already recorded by the Trial Court. Not only that the order
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passed by this court dated 09.09.2020 was by consent.
Therefore, there is no question of interfering with the said
order at this stage.
11. Not only that, the authority cited by the learned
Counsel for the Applicant in the matter of Niranjan Lal vs.
U.I.T.,Alwar & Ors. (Supra) is not applicable in the facts and
circumstances of the present case. In that case, the order
was passed by the court. There was no consent order
between the parties. Therefore, Rajasthan High Court held
that Appellate Court is expected to exercise its power
within the confnes to Rule 23 to 26-A of the Code whereas
in the case in hand, the impugned order dated 09.09.2019
was passed by consent of both the parties.
12. In view of the above mentioned facts, I do not fnd any
substance in the present Interim Application.
13. Hence, Interim Application stands dismissed.
14. No order as to costs.
(K.K.TATED, J.)
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