Bombay High Court
Executive Engineer, Bembla ... vs Manik Panjabrao Kalmegh And ... on 7 September, 2021
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
18.CAF1715.21.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CIVIL APPLICATION (F) NO.1715/2021 IN
FIRST APPEAL NO.492/2017
The Executive Engineer, Bembla Project Division, Yavatmal and anr.
Vs.
Manik Panjabrao Kalmegh and others.
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri M.A.Kadu, Advocate for applicants/appellants.
Shri Kalyan Chiwarkar, Advocate with Shri Anand Parchure, Advocate for non-
applicant no.1/respondent no.1.
CORAM :- A.S.CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.
DATED :- September 07, 2021.
The question that arises for consideration in this application is
whether an appeal under Section 96 of the Code of Civil Procedure,
1908 (for short, the Code) can be admitted in part by restricting the
grounds of challenge as made to the entire decree ?
2. In First Appeal No.492/2017 the appellants have challenged
the award passed by the Reference Court in L.A.C.No.613/2005 dated
04.04.2015 on various grounds. By the said award the Reference
Court enhanced the compensation that was payable for the acquired
land as well as for the trees standing therein. When the appeal came
up for admission on 27.04.2017 the Court observed that with regard
to the compensation awarded for the land it was not permissible for
the appellants to challenge that adjudication in view of the fact that
similar orders passed in favour of other claimants by the Reference
Court especially in L.A.C.Nos.48/2006 and 165/2006 had not been
challenged by the appellants. Thus while admitting the appeal it was
observed "hence we admit the appeal, only in respect of the challenge
by the VIDC to the enhancement of compensation for the trees and
the borewell". In other words, the first appeal was admitted only on
the grounds of challenge to the enhancement of compensation for the
trees and the borewell but not for the land.
3. Shri M.A.Kadu, learned counsel for the applicants/appellants
submits that the reason given by the Court in the order dated
27.04.2017 for not permitting the appellants to challenge the award
of the Reference Court insofar as the compensation was enhanced for
the acquired land was incorrect. According to him, it was wrongly
stated that the adjudication in L.A.C.Nos. 48/2006 and 165/2006 had
not been challenged by the appellants. The relevant proceedings
were L.A.C.No.48/2007 and not L.A.C.No.48/2006. First Appeal
No.244/2017 had been filed by the appellants for challenging the
award passed in L.A.C.No.48/2007. Further the land acquired in
L.A.C.No.165/2006 was dry crop land and it was not similar to the
land in the present appeal which was irrigated. Hence on this
incorrect premise, the appellants could not be prevented from
challenging the award insofar it enhanced the compensation for the
land in the present proceedings. On account of such restricted
admission the claimants were permitted to withdraw the amount of
compensation for the land without furnishing any security. According
to him, the respondents by narrating incorrect facts led the Court to
pass said order, it was therefore liable to be reviewed. The learned
counsel sought to place reliance on the decision in S.P.Chengalvaraya
Naidu Vs. Jagannath 1994 AIR SC 853 in that regard.
4. Shri Kalyan Chiwarkar, learned counsel for the non-applicant
no.1/respondent no.1. on the other hand submitted that considering
the reasons stated by the Court in the order dated 27.04.2017 that
order did not call for any review. He however submitted that the
claimants had filed Civil Application (F) No.1555/2021 for correction
of the order dated 27.04.2017 as reference was wrongly made to
"L.A.C.No.48/2006" instead of "L.A.C.No.48/2007". According to
him, since the enhancement granted for the land by the Reference
Court was justified, the Court while admitting the first appeal did not
commit any error apparent on the face of the record by restricting the
challenge only to the enhancement in the amount of compensation
for the trees and borewell. The learned counsel brought to the notice
of the Court the decisions in Krishnaji Shrinivas Jalvadi and ors. Vs.
Madhusa Appansa Ladaba and ors ILR (1934) 58 Bom 406, Vattipalle
Eswariah Vs. Vattipalle Rameshwarayya and ors, AIR 1940 Mad 483
and P. Santharam, Advocate Vs. K. Raveendran and anr. 2015 SCC
Online Ker 34425 in that context.
5. The question therefore to be considered is whether the Court
while admitting an appeal under Section 96 of the Code can restrict
the grounds on which the appeal is to be heard. The Full Bench of
the Bombay High Court in Krishna Shrinivas Jalvadi and ors (supra)
considered the question as to whether an appeal under Section 96 of
the Code could be admitted in part alone. It was held that if an
appeal is severable, it was open for the Judge hearing the appeal
under the provisions of Order XLI Rule 11 of the Code to dismiss it in
part or admit in part, just as at the final hearing the Court could
dismiss the appeal in part or allow it in part. It was further held in
clear terms that it was not open for a Judge hearing the appeal under
Section 96 of the Code to admit it and at the same time to restrict the
grounds on which the appeal was to be heard. If the appeal was
admitted the Court could not direct that it can be argued only on
certain questions and that other points were not to be argued.
A somewhat similar question was considered by the Full Bench
of the Madras High Court in Vattipalle Eswariah (supra). The
judgment of the Full Bench in Krishnaji Shrinivas Jalvadi and ors
(supra) was considered by the Madras High Court but it was of the
view that there was nothing in Order XLI of the Code which permitted
severance of the appeal so as to dismiss the appeal in part and admit
it in part. It was then held that it was open for the appellant to
challenge the decree on all grounds mentioned in the memorandum
of appeal.
6. The Kerala High Court in Santharam, Advocate Vs. K.
Ravendran and anr. (supra) considered the question whether an
appeal under Section 96 of the Code could be admitted only on
certain grounds. The decisions of the Full Bench of the Bombay High
Court and Madras High Court were referred to. It was held that no
restrictions could be imposed by the appellate Court under the
provisions of Order XLI 41 Rule 11 of the Code restricting the appeal
only to some grounds raised in the appeal.
7. The precise question arising in the present proceedings has
been considered by the Hon'ble Suprem Court in Ramji Bhagala Vs.
Krishnarao Karirao Bagra 1982 Mh.L.J. 835 . Therein, an appeal
under Section 96 of the Code was admitted insofar as certain prayers
were concerned and was rejected insofar as the other prayers were
concerned. It was held that such course was not permissible and the
appeal could be admitted either in its entirety or could be rejected in
its entirety.
8. We may also refer to the Order XLI 41 Rule 2 of the Code
which permit raising of grounds of objection that are not set-forth in
the memorandum of appeal which could be urged after obtaining
leave of the Court. Moreover, the appellate Court while deciding the
appeal would not be confined to the grounds of objection set-forth in
the memorandum of appeal or taken with leave of the Court under
the said Rule. This indicates that besides the grounds raised,
additional grounds with leave of the Court can always be permitted to
be raised in support of the appeal. We thus find that there is no
provision in the Code on the basis of which an appeal under Section
96 of the Code could be admitted in part by directing that the
challenge would be restricted only to certain grounds and not on all
grounds that are available to the appellant. It would be a different
matter if certain grounds of challenge to the decree/award are not
accepted while deciding the appeal finally.
9. Admitting the appeal but restricting the challenge on behalf of
the appellants only to the enhancement of compensation for the trees
and borewell but not for enhancement with regard to land would be
against the judgment of the Hon'ble Supreme Court in Ramji Bhagala
(supra) thus constituting an error apparent on the face of record. The
said error is thus liable to be rectified by invoking review jurisdiction.
10. Though it was sought to be urged by the applicants that
incorrect facts were deliberately placed before the Court at the behest
of the claimants when the appeal was admitted, we do not find so.
Since it is found that the appeal could not have been admitted on
restricted grounds, the order dated 27.04.2017 to the extent the
appeal was admitted only in respect of the challenge to the
enhancement of compensation for the trees and borewell is reviewed.
The appeal having been admitted, it is open for the appellants to
prosecute the same on all grounds raised by them in the
memorandum of appeal.
11. The Civil Application is accordingly allowed in terms of prayer
clause (a) and the order dated 27.04.2017 is reviewed to the
aforesaid extent. The effect of withdrawing the amount of
compensation pursuant to the order dated 27.04.2017 without
furnishing any surety/security would be considered when the appeal
is finally decided.
JUDGE JUDGE
Andurkar..
