Chaya Maruti Garad vs Babruwan Apparao Shinde And Ors
2021 Latest Caselaw 13479 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      23 SECOND APPEAL NO.551 OF 2013

                         CHAYA MARUTI GARAD
                                 VERSUS
                BABRUWAN APPARAO SHINDE AND ORS
                                    ...
      Advocate for Appellant : Mr. Kale Mahesh P. And G. V. Sukale
         Advocate for Respondent No.3 : Mr. V. V. Bhavthankar
       Advocate for Respondents No.2B to 2E : Mr. K. K. Kulkarni
                                    ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    20-09-2021.

ORDER :

1. Heard learned Advocate Mr. M. P. Kale and G. V. Sukale for

appellant, learned Advocate Mr. V. V Bhavthankar for respondent No.3

and learned Advocate Mr. K. K. Kulkarni for respondents No.2B to 2E.

2. Learned Advocate for the appellant has pointed out the order

passed by this Court on 15-11-2014. In fact two substantial questions

of law were framed while issuing notice to the respondents. At that

time respondent No.3 was only represented by Advocate and also the

office remark showed that the notice was served on respondent No.1,

2A to 2E, 4 and 5, however, none appeared for them. Under such

circumstances, it appears that though this Court was of the view that

the appeal needs to be admitted on account of those two substantial

2 SA 551-2013

questions of law, yet did not pass the formal order of admitting the

second appeal and then framing the substantial questions of law. In

fact, in view of Ashok Rangnath Magar vs. Shrikant Govindrao

Sangvikar, reported in (2015) 16 SCC 763, wherein it has been held

that :-

"18. In the light of the provisions contained in section 100, Civil Procedure Code and the ratio decided by this Court, we come to following conclusion :

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law ;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent ;

(iii) In no circumstances the High Court can reverse the judgment of the trial Court and the first Appellate Court without formulating the substantial question of law and complying with the mandatory requirements of section 100, Civil Procedure Code."

3 SA 551-2013

The second appeal would have been admitted by framing substantial

questions of law and then the notices were to be issued to the

respondents. Therefore, when this Court had already framed those

substantial questions of law and this Court was of the view that

those substantial questions of law as contemplated under Section

100 of the Code of Civil Procedure are arising in this case, the

second appeal deserves to be admitted, accordingly it is admitted.

3. It is clarified that a detailed order has been given while

framing those substantial questions of law and, therefore, the other

details are not repeated here.

4. Following are the substantial questions of law : -

(i) Whether learned District Judge has committed serious error in not decreeing the suit for partition in respect of suit house on the basis of Section 23 of the Hindu Succession Act, 1956 which is deleted by the Hindu Succession Amendment Act, 2005 ?

(ii) Whether the learned District Judge has committed error in reducing the share of the plaintiffs from 1/2 to 1/4th ?

5. Issue notice to the respondents after admission.

6. Learned Advocate Mr. V. V. Bhavthankar waives notice for

4 SA 551-2013

respondent No.3. Learned Advocate Mr. K. K. Kulkarni waives notice

for respondents No.2B to 2E.

7. In fact when the notice as directed in the order of 15-11-2014

has been issued which indicated that subject to the time constraint

and convenience of the Court, the appeal will be disposed of finally

at the stage of admission, and also indicate that despite service, if

respondents fail to appear, the Court will proceed to decide the

appeal on its own merits. Now it is not necessary that the other

respondents deserve to be served. However, as regards the final

disposal is concerned, it would be as per its number.

8. Call for record and proceedings.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-