Lalita Bhima Jagtap vs Pandit Annasaheb Kulkarni And ...
2021 Latest Caselaw 9581 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           SECOND APPEAL NO.481 OF 2018


                                   LALITA BHIMA JAGTAP
                                         VERSUS
                 PANDIT ANNASAHEB KULKARNI AND ANOTHER
                                            ...
                  Mr. V.B. Anjanwatikar, Advocate for the appellant
                 Mr. S.P. Pandav, Advocate for the respondent No.1
                                            ...

                                      CORAM :     SMT. VIBHA KANKANWADI, J.
                                      DATE :      22nd JULY, 2021.


ORDER :

1 Heard learned Advocate Mr. V.B. Anjanwatikar for the appellant

and learned Advocate Mr. S.P. Pandav for the respondent No.1.

2 Learned Advocate Mr. V.B. Anjanwatikar appearing for the

appellant-original plaintiff vehemently submitted that the Trial Court had

applied wrong procedure to dismiss the suit of the appellant and the said

illegality was not considered by the learned First Appellate Court. Before the

learned Trial Judge the plaintiff had filed suit for injunction. She had come

with a specific case that she is the owner of the property and the defendants

2 SA_481_2018

are obstructing her possession. Defendant No.1 had resisted the claim of the

plaintiff by filing written statement. Issues came to be framed. Thereafter

the plaintiff had filed her own affidavit-in-chief as well as affidavit-in-chief of

her witness and had also produced certain documents on record. However,

on the adjourned day/dates plaintiff and her witness remained absent, and

therefore, the learned Trial Judge, on her own, closed the side of the plaintiff

for evidence and then asked the defendant No.1 to lead evidence. Defendant

No.1 had filed his affidavit-in-chief as well as affidavit-in-chief of his witness.

Thereafter the submissions were heard on behalf of the defendant No.1 in

absence of the Advocate engaged by the plaintiff and then the Judgment has

been delivered. In fact, when the plaintiff had not remained present for the

cross-examination, the learned Trial Judge could have dismissed the suit in

default, but there could not have been a Judgment on merits. Learned First

Appellate Court failed to consider this lacuna and went on to decide the case

on merits. When the procedure itself was wrongly applied, it gives the

substantial question of law. Learned Advocate Mr. V.B. Anjanwatikar fairly

submitted that either the Second Appeal should be admitted or it be

remanded to the learned Trial Judge, where the plaintiff as well as the

witness would remain present and would lead evidence.

3              Per contra, the learned Advocate Mr. S.P. Pandav, representing





                                         3                                       SA_481_2018

the respondent No.1, strongly objected the admission of the Second Appeal

on the ground that the Trial Judge has properly applied the procedure. In

fact, the plaintiff was claiming ownership through Gift Deed, however, she

had not produced any documentary evidence, especially, the Gift Deed.

Further, her title was challenged by the defendant No.1 in his written

statement, and therefore, the plaintiff ought to have amended the plaint or

on the fact that the declaration was not sought, the suit was not maintainable

in view of the decision in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by

LRs and others, AIR 2008 SC 2033. He also submitted that in another case

i.e. Regular Civil Suit No.514/2011 where the suit property was involved, the

interim injunction has been granted in favour of the defendant No.1.

Therefore, when he is in possession of the property as owner, both the Courts

below have considered the evidence, that has been produced by the

defendant No.1. The learned Trial Judge had rightly dismissed the suit and

the said decree has been properly upheld by the learned First Appellate

Court. Second Appeal does not require any kind of interference.

4 At the outset, before turning to the merits of the case, when the

point is raised as regards, whether the learned Trial Judge could have

proceeded with the matter in absence of plaintiff and could have granted

defendant No.1 a chance to lead evidence and then could have pronounced

4 SA_481_2018

the Judgment and Decree on its merits itself, is a question. The facts from

that angle are required to be seen first. Plaintiff presented the plaint,

thereafter summons was issued and defendant No.1 was called. He filed

written statement challenging the averments in the plaint. Then as per Order

XIV Rule 1 of the Code of Civil Procedure, 1908, issues came to be framed.

That means, all the stages till Order XIV of CPC were undertaken. Thereafter,

Order XV of CPC would come in the chronology, which makes provision of

disposal of the suit at the first hearing. Important point to be noted is that in

the Judgment, it has been held that inspite of giving opportunity to the

plaintiff and the witness to remain present, they did not remain present. This

indicates that adjournments were granted, and therefore, there could not

have been the disposal of the suit at the first hearing, as contemplated under

Order XV of the Code of Civil Procedure. Order XVI of CPC, turning with

summoning and attendance of witnesses. Admittedly, the matter was kept for

filing list of witnesses and thereafter the evidence in the form of affidavit has

been taken. The ideal procedure would be that the plaintiff would submit his

affidavit-in-chief, make himself/herself available for cross, after the cross-

examination is over he can be said to be discharged from the witness box.

Till then another party or even the witness cannot enter the witness box.

Though in this case, it appears that the affidavit-in-chief of the witness of the

plaintiff was also filed along with the affidavit-in-chief of the plaintiff; yet,

5 SA_481_2018

until and unless plaintiff would have been discharged from the witness box,

there was no question or no occasion for examining or cross-examining

plaintiff's witness. Strictly, the procedure under Order XVI of CPC appears to

have not been adhered to in this case. Thereafter, in the chronology, there is

Order XVII of CPC, which deals with adjournments. Rule 1 of Order XVII of

CPC gives discretion to the Court to grant adjournments, if sufficient cause is

shown, at any stage of the suit. We are more concerned with Rule 2 of Order

XVII of CPC, which provides for procedure if parties fail to appear on day

fixed. It provides that - Where, on any day to which the hearing of the suit is

adjourned, the parties or any of them fail to appear, the Court proceed to

dispose of the suit in one of the modes directed in that behalf by Order IX or

make such other order as it thinks fit. That means, in case of failure on the

part of a party or parties the procedure that would be followed by the Courts

would be one of the modes from Order IX of CPC or even simply adjourned

the case further. However, there is explanation to Rule 2 of Order XVII of

CPC, which provides that - Where the evidence or a substantial portion of

the evidence of any party has already been recorded and such party fails to

appear on any day to which the hearing of the suit is adjourned, the Court

may, in its discretion, proceed with the case as if such party were present.

Order IX of CPC lays down the procedure to be followed on the appearance

or non-appearance of the parties at the first hearing and Order XVII applies

6 SA_481_2018

when there is default of appearance at an adjourned hearing. Order XVII

Rule 2 of CPC only applies when one or both of the parties do not appear on

the day fixed for the adjourned hearing. In that event the Court is thrown

back to Order IX with the additional power to make such order as it thinks

fit. Therefore, when it goes back to Order IX, then in case of appearance of

only the plaintiff the Court may proceed ex parte or if only the defendant

remains present, then it may dismiss the suit in default or both the parties

remain absent, then adjourned the case to a further date. We will have to

simultaneously consider Rule 3 of Order XVII of CPC, which empowers Court

to proceed notwithstanding either party fails to produce evidence, it provides

that -

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default -

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2 of CPC.

Therefore, when neither the plaintiff nor the witnesses are

present, then as per the decision in Mohandas and others vs. Ghisia Bai and

others, AIR 2002 SC 2436, the suit has to be dismissed under Order XVII Rule

7 SA_481_2018

2 of CPC and not under Order XVII Rule 3 of CPC. Even Rule 3 of Order XVII

of CPC itself provides that if the parties or any of them are absent, the Court

shall proceed to decide the suit under Order XVII Rule 2 of CPC. Therefore,

taking into consideration this provision, definitely, substantial questions of

law are arising in this case, as to whether the procedure that was adopted by

the learned Trial Judge and was not considered by the learned First Appellate

Court was correct or not ?

5 The ratio laid down in Anathula Sudhakar (supra) cannot be

denied. However, whether it was applicable to the facts of the present case

can be decided at the final hearing stage, if the public documents were

sufficient enough to see how the title was derived by a party, then whether it

would be necessary to produce a document of title, is a question. And

further, if this Court at the final hearing stage decides to remand the matter

in view of the alleged illegal procedure that was adopted, then there may not

be a question for the decision regarding applicability of the ratio in Anathula

Sudhakar (supra).

6 In view of the fact above stated that the substantial questions of

law are arising, the Second Appeal deserves to be admitted. Accordingly, it is

admitted and the substantial questions of law are as follows.

                                             8                                      SA_481_2018



          1        Whether the learned Trial Judge was justified in

proceeding with the matter in absence of plaintiff and the witness in ignorance of provisions of Order XVII Rule 2 of CPC coupled with provisions of Order IX of CPC ?

2 Whether the First Appellate Court was justified in not considering the irregular/illegal procedure adopted by the learned Trial Judge and erred in deciding the appeal on merits ?

          3        Whether the matter deserves remand ?

          4        Whether the suit was maintainable in the form it was
          filed?

          5        Whether the plaintiff-appellant had proved title and
          possession over the suit property ?

          6        Whether she was entitled to get the relief of injunction ?




7                Issue notice to the respondent No.1 after admission. Learned

Advocate Mr. S.P. Pandav waives notice for the respondent No.1.

8                Call Record and Proceedings.




                                                 ( Smt. Vibha Kankanwadi, J. )


agd