Babarao S/O Rangraoji Shende vs Manohar S/O Akaram Nikude
2021 Latest Caselaw 78 Bom

                                1                                                                                                                    CAA 35.2020

                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  NAGPUR BENCH : NAGPUR

                       Civil Application (A) No.35/2020 in A.O. St. No.8137/2020
                                                      (Babarao Shende V Manohar Nikude)
 ----------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram,                                                                                             Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------------
                            Shri J.R. Kidilay, Adv for applicant.

                                        CORAM : S.M. MODAK, J.

DATE : 04-01-2021.

Heard learned Advocate Shri Kidilay for the appellant/original plaintiff.

2. First Appellate Court has allowed the appeal of the original defendant and was pleased to set aside the trial Court judgment and remanded the matter for fresh trial. The said judgment is challenged by the plaintiff. Hence, the delay of 88 days.

3. Issue notice to the respondent, returnable after three weeks.

Civil Application (A) No.36/2020

Heard.

2. Yet the appeal is to be admitted. Yet the delay condonation application is to be decided. Such appeal against the order of remand is just like Second Appeal only and it needs to be ascertained whether any substantial question of law is involved in it. At this stage, this Court is not supposed to go into that issue because, delay condonation application is yet to be decided.

3. On hearing the arguments, what I find is that probable substantial question of law may be -

2 CAA 35.2020

"whether it was justified for the First Appellate Court to remand the matter by setting aside ex-parte judgment on the ground that the defendant needs to be given an opportunity for leading the evidence (which was sought to be produced before the First Appellate Court as per the provisions of Order XLI Rule 27 of the Code of Civil Procedure?)"

4. This is the grievance of the original plaintiff that when the defendant had chosen to remain absent and has not filed written statement, it was not proper for the First Appellate Court to remand the matter and permit the defendant to adduce the evidence as contended before the First Appellate Court. So, I think, the proceedings before the trial Court needs to be stayed until appearance of the respondent/defendant.

5. Hence, the proceedings before the trial Court are stayed till the appearance of the respondent.

(S.M. Modak, J.) Deshmukh