Bombay High Court
Bhairappa Yashwant Bagale And Ors vs Mrs. Sulochana Vidhyadhar ... on 22 January, 2021
Bench: C.V. Bhadang
This Order is modified/corrected by Speaking to Minutes Order dated 05/02/2021
17-ia-5-21 in sast-3552-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 05 OF 2021
IN
SECOND APPEAL (ST) NO. 3552 OF 2020
Bhairappa Yashwant Bagale & Ors. ..Applicants
Vs.
Sulochana Vidhyadhar Gangade ...Respondent
----
Mr. Ashok B. Tajane, for the Applicants.
Ms. Ketaki Gadkari i/b. Ms. Shruti Tulpule, for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 22nd JANUARY 2021
P.C.
. By this application, the applicants are seeking leave to file and
prosecute Second Appeal (Stamp) No.3552/2020.
2. According to the applicants, the reason for seeking such leave
arises in the following circumstances.
The respondent (plaintiff) had filed Regular Civil Suit
No.336/2014 against the applicants. The applicant No.4 (since
deceased) happens to be the mother of the applicant Nos.1 to 3 and
the respondent. That suit was filed for partition and separate possession
of the suit property, more specifically described in para No.1 of the
Mamta Kale page 1 of 11
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plaint. The respondent contended that on 19/3/2014 when the
partition was demanded, the same was refused, which led the
respondent to file the suit, as aforesaid.
3. The applicant Nos.1 to 3 are the original defendant Nos.2 to 4
in the suit. The applicant No.4 (since deceased) was defendant
No.1. The defendant Nos.3 and 4 chose not to contest the suit, as a
result of which they were proceeded exparte on 4/3/2014. The
original defendant Nos.1 and 2 appeared in the suit, however, did
not file Written Statement, as a result of which, the suit was directed
to proceed without Written Statement of the defendant Nos.1 and 2
on 4/3/2015. It appears that the defendant Nos.1 and 2 filed
application (Exh.17) for setting aside the said order and permitting
them to file Written Statement, which was allowed subject to
payment of costs. The record discloses that the costs were not paid,
as a result of which, the order by which the suit was directed to
proceed without Written Statement of the defendant Nos. 1 and 2
stood as it is.
4. The respondent (original plaintiff) examined herself and
produced the 7/12 extract of Gat No.50 (Exh.20) and Gat No.53
(Exh.21) alongwith the map of Gat No.53 (Exh.22) and that of Gat
Mamta Kale page 2 of 11
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No.50 (Exh.23). The learned Trial Court noticed that in the 7/12
extract the name of the plaintiff as well as the defendants was
shown as owners. The learned Trial Court after noticing that the
suit was directed to proceed without Written Statement in so far as
the defendant Nos.1 and 2 are concerned and the defendant Nos.3
and 4 having proceeded exparte, the learned Trial Court by a
judgment and decree dated 18/8/2015, decreed the suit granting
1/5th share to the plaintiff and the defendants each.
5. It is necessary to note that it was only the applicant No.4 (the
defendant No.1 in the suit) who chose to challenge the said decree
before the learned District Judge in Regular Civil Appeal
No.113/2017. The learned District Judge framed the following
points for determination.
POINTS FINDINGS
1. Whether the suit properties are Yes
ancestral properties of the plaintiff ?
2. Whether the plaintiff is entitled for 1/5 share.
partition ? If yes, what will be her
share ?
3. Whether the judgment and decree of Yes
Trial Court is legal and proper ?
4. Whether any interference is required No
in the judgment and decree of the Trial
Court ?
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5. What order and decree ? As per final order,
appeal is dismissed
with costs.
6. The learned District Judge by a judgment and decree dated
2/11/2019 dismissed the appeal. The judgment of the first
Appellate Court shows that, even in the appeal, it was only the
original plaintiff, who appeared and contested the appeal. Thus, the
present applicant Nos.1 to 3 neither filed any appeal against the
order of the Trial Court nor appeared in the appeal filed by
Sushilabai in order to support her if at all, they were aggrieved by
the judgment and decree passed by the Trial Court. It is only after
the first Appellate Court dismissed the appeal, that the present
applicants are seeking to challenge the same by filing the second
appeal.
7. The learned counsel for the applicants submitted that the
leave is sought for in view of the fact that the applicant Nos.1 to 3
had not filed any appeal before the first appellate court.
8. It is necessary to note that after the decision of the appeal on
2/11/2019, the applicant Sushilabai (the appellant before the first
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Appellate Court) expired in the month of December 2019. Thus,
when the present application / appeal was filed, in December 2020,
the applicant No.4 was long dead.
9. I have heard Mr. Tajane, the learned counsel for the applicants
and Ms. Ketaki Gadkari, for the respondent. With the assistance of
the learned counsel for the parties, I have gone through the record.
10. At the outset, it is necessary to mention that in order to give
quietus to the matter, the parties were heard, not only on the
application for leave but also on the second appeal.
11. It is submitted by Mr. Tajane, the learned counsel for the
applicants / appellants that one of the co-defendant i.e. Sushilabai
having challenged the judgment and decree passed by the Trial
Court it was not necessary for the present applicant Nos.1 to 3 to
have challenged the same separately. It is submitted that in the suit
for partition, the interest of the defendants where there is no
intersay dispute between them is common and therefore, the
challenge by Sushilabai will enure to the benefit of the present
applicants. It is submitted that the leave is sought only by way of
abundant caution, in order to avoid any technical objection /
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difficulty. The learned counsel in this regard has placed reliance on
the decision of the Hon'ble Supreme Court in Mahabir Prasad Vs.
Jage Ram and Others (1971)1 SCC 265.
12. In so far as the merits are concerned, it is submitted that the
Trial Court has failed to frame any issues or to give any reasoning
for decreeing the suit. It is submitted that, notwithstanding the fact
that the suit went uncontested, the Trial Court was required to
ascertain the nature of the property and the entitlement of the
respondent (plaintiff) for a decree of partition. It is submitted that
the learned Trial Court having failed to do so, it was necessary for
the Appellate Court to have gone into the said question which the
first Appellate Court has failed to do. In this regard, reliance is
placed on the decision of the Madras High Court in K. Balakrishnan
Vs. S. Dhanasekar MANU/TN/4735/2017 .
13. The learned counsel alternatively submitted that in any event,
after the death of Sushilabai, the applicant Nos.1 to 3 being her
legal representatives, would be entitled to challenge the judgment
and decree passed by the Courts below, in the capacity as the legal
representatives.
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14. The learned counsel for the respondent has supported the
impugned judgment. It is submitted that the applicants are not
entitled to challenge the judgment once they had failed to challenge
the judgment of the Trial Court and even failed to appear before the
first Appellate Court. It is submitted that the suit went uncontested
and the first Appellate Court has given detailed reasoning while
refusing to interfere with the decree passed by the Trial Court. It is
therefore submitted that the appeal does not raise any substantial
question of law.
15. I have carefully considered the rival circumstances and the
submissions made.
16. As noticed earlier, none of the defendants contested the suit.
While the suit proceeded exparte against the defendant Nos. 3 and
4, the suit was directed to proceed without Written Statement of the
defendant Nos.1 and 2. The defendant Nos.1 and 2 sought leave to
file Written Statement which was allowed on payment of costs but
they failed to pay the same, as a result of which, the suit proceeded
without written statement of the defendant Nos.1 and 2. Thus,
there was no contest on facts in the suit much less any evidence was
led. The learned Trial Court has noticed that the 7/12 extract in
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respect of the suit property Gat Nos.50 and 53 showed that plaintiff
as well as defendants were shown as owners in column No.7.
There was absolutely nothing to show that the original plaintiff
being one of the daughters of Sushilabai was not entitled to seek the
partition. The learned Trial Court granted equal share i.e. 1/5 th
share each to the plaintiff and the defendants.
17. The record further discloses that the Sushilabai (defendant
No.1) alone challenged the decree of the Trial Court in the first
appeal in which the applicant Nos.1 to 3 were the respondents. The
record discloses that even in the appeal, the present applicant Nos.1
to 3 did not appear and they could have supported the appellant if
at all they were aggrieved by the decree of the Trial Court which
they failed to do. For the aforesaid reasons, it is difficult to see as to
how the applicants can now be permitted to file the second appeal.
The reliance placed on the decision of Mahabir to my mind is
misplaced. That was a case essentially involving the issue of
abatement, in the face of the death of one of the party, where the
appeal was filed by only one of the persons who had suffered a joint
decree alongwith others. The learned counsel for the applicants
placed reliance on the following observations in para 7 of the
judgment.
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Para 7 - Even on the alternative ground that Mahabir
Prasad being one of the heirs of Saroj Devi there can
be no abatement merely because no formal
application for showing Mahabir Prasad as an heir and
legal representative of Saroj Devi was made. Where
in a proceeding a party dies and one of the legal
representative is already on the record in another
capacity, it is only necessary that he should be
described by an appropriate application made in that
behalf that he is also on the record, as an heir and
legal representative. Even if there are other heirs and
legal representatives and no application for
impleading them is made within the period of
limitation prescribed by the Limitation Act, the
proceeding will not abate. On that ground also the
order passed by the High Court cannot be sustained.
It can thus clearly be seen that the case of Mahabir Prasad
turned on its own facts.
18. In the case of K. Balakrishnan before the Madras High Court,
the suit was filed by the plaintiff seeking injunction in which the
plaintiff examined himself and produced certain documents. The
suit proceeded exparte as the defendants did not enter appearance.
The suit came to be decreed exparte which was challenged by the
defendants in first Appeal which came to be dismissed. This is how
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the matter reached the High Court in a second appeal at the
instance of the defendant. On facts, it was found that the impugned
judgments were unreasoned. It is necessary to emphasise that
whether the impugned judgment is unreasoned or not would
evidently depend upon facts and circumstances of each case.
Further, it is necessary to note that in the case of K. Balakrishnan,
the defendant had filed the first appeal, unlike in the present case
where the applicant Nos.1 to 3 have failed to challenge the
judgment and decree passed by the Trial Court in the first appeal
and not even entered appearance in the appeal filed by Sushilabai in
order to support her if at all they were aggrieved by the judgment of
the Trial Court.
19. I have also gone through the judgment of the Trial Court and
the first Appellate Court. The first Appellate Court which is the final
fact finding Court has considered the matter in detail after framing
points for determination which are reproduced above and has
thereafter confirmed the decision of the Trial Court. At the cost of
repetition, it is necessary to note that the original plaintiff as well as
four defendants are all shown in the 7/12 extract of the suit
property and the Trial Court has granted 1/5th share to each of them.
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20. The contention that the applicant Nos. 1 to 3 would be
entitled to challenge the judgment in the capacity of legal
representatives of Sushilabai also cannot be accepted in the facts
and circumstances of this case. This is because the respondent
would be equally the legal representative being one of the daughter
of Sushilabai alongwith the applicants. Looked from any angle,
neither the case for grant of leave nor for the admission of the
second appeal is made out. In the result, the civil application as
well as second appeal are hereby dismissed with no order as to
costs. Pending civil applications if any, are disposed of as
infructuous.
C.V. BHADANG, J.
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