Bombay High Court
Laxman Ramrao Nagargoje vs Suresh Premraj Mutha on 30 November, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
909 SECOND APPEAL NO.565 OF 2021
WITH
CA/12421/2021 IN SA/565/2021
LAXMAN RAMRAO NAGARGOJE & ORS./
VERSUS
SURESH PREMRAJ MUTHA
...
Advocate for Appellant : Mr. R. F. Totala A;
Mr. P.F. Patni, Adv. For Respondent sole Caveator
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 30th November, 2021
PER COURT :-
1. Present appeal has been filed by original
defendants, challenging the judgment and decree passed by
both the Courts below. Present respondent is original
plaintiff, who had filed Special Civil Suit No.290/2001 before
Joint Civil Judge, Senior Division, Aurangabad for specific
performance of contract and perpetual injunction. The said
suit came to be decreed on 4.4.2007. The plaintiff was
directed to deposit amount of Rs.2,40,000/- within a period
of one month towards consideration of the plot and on
depositing the said amount by the plaintiff, the defendants
should execute sale-deed in respect of the suit property in
favour of the plaintiff. Other consequential order was also
passed.
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2. Present appellants - original defendants
challenged the said judgment and decree by filing RCA No.
243/2012 and the said appeal has been dismissed by
learned District Judge-3, Aurangabad on 12.3.2021. Hence,
this Second Appeal.
3. Heard learned Advocate appearing for the
respective parties.
4. Without going into merits of the case, it can be
seen from the judgment of the first Appellate Court that
there is blatant non-adherence to the provisions of Order 41
Rule 31 of CPC. Only one point was framed for
determination, viz. "Whether judgment and order passed by
the learned Trial Court is legal, valid and legally
sustainable ?" and in only one paragraph, the reasons are
given. There is absolutely no re-appreciation of evidence
that was adduced by both the courts below.
5. In H. Siddiqui (Dead by L.rs.) Vs. A.
Ramlingam - 2011 4 SCC 240 it has been laid down in
respect of Order 41 Rule 31 of CPC that, "this provisions
should be read in such a way as to require that the various
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particulars mentioned therein should be taken into
consideration. Thus, it must be evident from the judgment
of the appellate court that the court has properly
appreciated the facts/evidence, applied its mind and decided
the case considering the material on record. It would
amount to substantial compliance of the said provisions if
the appellate court's judgment is based on the independent
assessment of the relevant evidence on all important aspect
of the matter and the findings of the appellate court are well
founded and quite convincing. It is mandatory for the
appellate court to independently assess the evidence of the
parties and consider the relevant points which arise for
adjudication and the bearing of the evidence on those
points. Being the final court of fact, the first appellate court
must not record mere general expression of concurrence
with the trial court judgment rather it must give reasons for
its decision on each point independently to that of the trial
court. Thus, the entire evidence must be considered and
discussed in detail. Such exercise should be done after
formulating the points for consideration in terms of the said
provisions and the court must proceed in adherence to the
requirements of the said statutory provisions."
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6. Further, the Division Bench of this Court in the
case of Khatun bee wd/o Mohammed Sayeed and Ors.
Vs. Aminabai w/o Mohammad Sabir - 2006 (6)
Mah.L.J. 759, had reiterated that compliance of Rule 31 of
Order 41 of CPC is mandatory and non-adherence to the
same warrants setting aside of judgment and remanding the
matter to the first Appellate Court to consider the appeal
afresh in accordance with provisions of law. In view of this
legal position, this Court has no option but to set aside the
judgment and decree passed by learned District Judge-3,
Aurangabad on 12.3.2021 and remand the matter for its
consideration afresh.
7. It will not be out of place to mention here that,
after the judgment and decree was passed by the learned
Trial Judge, the present appellants had filed the First Appeal
before this Court and thereafter it can be seen that after
pecuniary jurisdiction of the District Courts was increased,
the said appeal was transferred. When the First Appeal was
before this Court, on the application for stay, an order was
passed on 17.4.2008. Learned Advocate for the appellants
submits that the execution proceeding is pending and would
be taken up in the near future and under such circumstance,
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while remanding the matter, stay has to be granted to the
further proceedings before the Executing Court and same
conditions, as this Court had earlier imposed, are required
to be imposed.
8. With these observations, following order is
passed,
ORDER
i. The Second Appeal stands partly
allowed;
ii. The judgment and decree passed in
RCA No.243/2012 by learned District Judge-3,
Aurangabad, on 12.3.2021, stands set aside;
iii. The Regular Civil Appeal No. 243/2012
is restored to the file of Principal District Judge,
Aurangabad.
iv. Both the parties to appear before the
learned Principal District Judge, Aurangabad on
20th December, 2021.
v. In view of the fact that old matter
would be restored, learned Principal District
Judge, Aurangabad to expedite hearing of the
appeal and decide the same as early as possible
and preferably within a period of eight months
from the date of appearance of the parties before
him.
vi. CA No.12421/2021 moved for stay
stands allowed and disposed of in terms of prayer
clause (B). However, a condition is imposed that
the appellants/applicants will not create any third
party interest in respect of the suit property and
will not part with the possession of the suit
property in favour of any third party. Further, in
the event the applicants commit any breach of
this condition, it would be open to the
respondent-plaintiff to make an application to the
first Appellate Court itself for vacating the stay.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
