Smt.Bhanumati Wd/O Prakash ... vs Shri Shankar Shripal Brahmne And ...
2021 Latest Caselaw 13451 Bom

16-J-LPA-114-03--                                                                 1/6


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.

                      LETTERS PATENT APPEAL NO.114 OF 2003
                                        IN
                          WRIT PETITION NO.4205 OF 2002


1. Bhanumati wd/o Prakash Shende
   aged - major Occupation Service

2. Krushnabai wd/o Deorao Meshram
   aged - Major, Occupation Household

3. Raju s/o Deorao Meshram
   aged major, occupation Service

     All resident of Gaddigodam, Nagpur               ... Appellants

-vs-

1. Shankar Shripal Brahmne
   (Dead) thr. Legal Heirs

1-a] Anil s/o Shankarrao Brahmne
     Aged Major, Occ. Advocate

1-b] Ashish S/o Shankarrao Brahmne
     Aged Major, Occ. Driver
     Both R/o Plot No.3, Nasik Nagar,
     Thaware Colony, New Subhedar Layout,
     Nagpur-24

1-c] Sujata w/o Ashok Khobragade,
     Aged about 42 years, Occ. Household,
     R/o Central Excise Colony, Type-III-10
     Seminary Hills, Nagpur -6

1-d] Archana Lalit Khobragade,
     Aged 38 years, Occ. Household,
     R/o 83, Swami Colony,
     Seminary Hills, Nagpur-6

2.     Balasaheb Vakilpeth Gruha
       Nirman Cooperative Society Ltd.
       Nagpur registration No.3891
       through its Secretary, Registered



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      office at Ugantar Vastugruha
      Untkhana, Nagpur                                  ... Respondents


Shri Anil S. Mardikar, Senior Advocate with Shri S. G. Joshi, Advocate,
Shri Mayank Gupta, Advocate and Shri Rushabh Khemka, Advocate for appellants.
Shri Gopal B. Sawal, Advocate for respondent No.1.

                CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.

DATE : September 20, 2021

Oral Judgment : (Per : A. S. Chandurkar, J.)

This Letters Patent Appeal takes exception to the order passed by

the learned Single Judge in Writ Petition No.4205/2002. By the said order

the writ petition preferred by the appellants herein came to be dismissed in

limine thereby confirming the order passed by the Co-operative Appellate

Court. The Co-operative Appellate Court in the appeal preferred by the

respondent No.1 allowed the same and set aside the award passed by the Co-

operative Court.

2. After hearing the learned counsel for the parties at length and after

perusing the material on record, we are of the opinion that Writ Petition

No.4205/2002 deserves to be heard afresh and decided on merits after

considering the material available on record. We have arrived at this

conclusion for the following reasons :

(a) The award passed by the Co-operative Court in favour of the

appellants-original disputants was after recording various reasons which can

16-J-LPA-114-03-- 3/6

be found from paragraph 6 onwards in the judgment dated 11/04/2000.

The Co-operative Court has firstly taken into consideration the report of the

handwriting expert who was examined at the behest of the opponent No.1.

The handwriting expert considered the signature of opponent No.1 on the

mortgage deed dated 07/02/1985, his signature on the written statement

and his specimen signature. He thereafter opined that the authorship of

those documents was of the same person. It has then been held that the

evidence of the handwriting expert had not been shattered in the cross-

examination and on that basis said report was accepted.

The Co-operative Appellate Court while considering this report of

the handwriting expert has on record page No.78 observed that the opinion

of the handwriting expert with regard to the signatures of Opponent No.1

was correct. Having accepted the said report/opinion of the handwriting

expert, there is no further consideration of the same by the Co-operative

Appellate Court. It has not given any reason for not giving any weightage or

for ignoring the opinion of the handwriting expert.

(b) The Co-operative Court passed its judgment in the light of the fact

that the signature of Opponent No.1 against plot No.26 was seen on the

mortgage deed-Exhibit Op-2/1 while the loan against plot No.3 was shown

against the name of the disputant. It is to be noted that the mortgage deed

was produced on record at the behest of the Opponent No.1. The Co-

16-J-LPA-114-03-- 4/6

operative Appellate Court has accepted this position on record page No.80

but has again not given any reason for discarding this material. It has been

further held by the Co-operative Court that the stand of the Opponent No.1

that his signature was forged was not proved nor was copy of resolution

dated 25/11/1980 produced on record by him. Absence of possession letter

with regard to plot No.3 has also been referred to. The Co-operative

Appellate Court has however proceeded to reverse the judgment of the Co-

operative Court but without giving any definite finding or recording a

conclusion as to how the view taken by the Co-operative Court on the basis

of such material was incorrect.

3. The learned Single Judge in the order dated 07/03/2003 has

merely observed that since the Co-operative Appellate Court had passed a

detailed order and had taken into consideration the deposition of witnesses,

there was no reason to interfere. We find that in the light of the fact that

there was a judgment of reversal by the Co-operative Appellate Court by

setting aside the award passed by the Co-operative Court, consideration of

the material available on record was warranted in view of the grounds

raised in the writ petition. We find that in the writ petition preferred by the

appellants under Articles 226 and 227 of the Constitution of India specific

grounds as to non-consideration of relevant material by the Co-operative

Appellate Court were raised. Additional grounds of challenge based on

16-J-LPA-114-03-- 5/6

perversity have also been raised. Though an objection based on

maintainability of the Letters Patent Appeal has been raised by the learned

counsel for the respondent No.1, in the light of the observations of the

Honourable Supreme Court in its recent decision in General Manager,

Electrical Rengali Hydro Electric Project, Orissa and ors. vs. Giridhari Sahu and ors.

(2019) 10 SCC 695 and especially paragraph 28 thereof which read as under:

" 28. .... An error of law which becomes vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC 233, as to what constitutes an error apparent on the fact of the record, is a matter to be decided by the Court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ Court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down in Parry & Co. Ltd. vs. P.C. Pal, AIR 1970 SC 1334." (emphasis supplied by us).

Thus we are satisfied that the Letters Patent Appeal is

maintainable.

4. Both sides have brought on record substantial material in

support of their respective contentions and a proper consideration of the

same and a finding as to why the Co-operative Appellate Court preferred to

accept the case of the Opponent No.1 while reversing the judgment of the

16-J-LPA-114-03-- 6/6

Co-operative Court it is required to be gone into. For all these reasons we

are satisfied that fresh consideration of the writ petition is warranted in

these facts. It is true that the proceedings are pending since long and in that

backdrop the learned Single Judge can be requested to expeditiously decide

the aforesaid writ petition on its own merits without being influenced by any

observations made in this order.

5. Accordingly order passed by the learned Single Judge in Writ

Petition No.4205/2002 dated 07/03/2003 is set aside. Writ Petition

No.4205/2002 is restored to file for fresh adjudication in accordance with

law. We request the learned Single Judge to expeditiously decide the said

writ petition considering the age of the litigation. All questions on merits

are kept open.

The Letters Patent Appeal is allowed in aforesaid terms.

No order as to costs.

                                    JUDGE                     JUDGE




Asmita