Bombay High Court
Smt. Shantabai @ Laxmibai Mahadu ... vs Mohd. Javed Haji Umardaraj Malavi on 20 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 6969 OF 2019
Smt. Shantabai @ Laxmibai Mahadu Ingole and Ors.
Vs.
Mohd. Javed Haji Umardaraj Malavi
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S.P. Kshirsagar, Advocate for petitioners.
Mr. Sameer Khan, Advocate for respondent.
CORAM : MANISH PITALE J.
DATE : 20.04.2022.
By this writ petition, the petitioners (original
defendants) have challenged order dated 24.09.2019
passed by the Court of Civil Judge Junior Division,
Malegaon, District - Washim (hereinafter referred to as
'the trial Court'), whereby an application filed by the
respondent (original plaintiff) for leading evidence has
been allowed and the objections raised on behalf of the
petitioners have been rejected.
2. In the present case, the respondent has filed
a suit for specific performance against the petitioners.
In the first round of litigation, the matter came up to
this Court in the form of Second Appeal No. 478/2004.
The said appeal filed by the petitioner was partly
allowed by this Court. It was held that while the Courts
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below had appreciated the material on record and
rendered findings on factors relevant to the prayer for
grant of specific performance, one crucial aspect
pertaining to 'willingness' of the original plaintiff was
not appreciated in the correct perspective. It was held
that while the trial Court had considered the aspect of
readiness, the aspect of willingness was not touched.
On this basis, this Court found it fit to set aside the
concurrent orders passed by the two Courts below and
remanded the matter to the trial Court. The relevant
portion of the judgment and order dated 22.04.2019,
passed by this Court in Second Appeal No.478/2004,
reads as follows:
"8. It is clear from the observations in paragraph 43
(iii) that one of the aspects which shall have to
be considered is whether there was an inordinate
delay in filing the suit after the alleged breach /
refusal and the effect thereof. The evidence on
record shall have to be looked into by the trial Court
and a finding on willingness would have to be
recorded. It would therefore, be necessary to
remand the matter to the trial Court. In this view of
the matter, I do not find it necessary to refer to the
other decisions cited at the bar.
9. The judgment dated 9.9.2002 in Special Civil Suit
4 of 2002 rendered by the Civil Judge (Senior
Division), Washim and the judgment dated
30.4.2004 in Regular Civil Appeal 246 of 2002
rendered by the Adhoc Additional District Judge are
set aside.
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10. Matter is remitted to the trial Court for fresh
decision in the light of the observations in this
judgment."
3. Thereafter, admittedly, the trial Court framed
an additional issue after the matter was remanded by
this Court. The said issue pertains to the question as to
whether there was an inordinate delay in filing of suit
after the alleged breach/refusal and if yes, the effect
thereof. In the backdrop of the additional issue framed,
the respondent moved an application at Exhibit 66 for
leading evidence on the said issue. This was objected to
by the petitioner by filing objection at Exhibit 67. As
noted above, by the impugned order dated 24.09.2019,
the trial Court allowed the application filed by the
respondent at Exhibit 66, while the objection raised on
behalf of the petitioners at Exhibit 67 was rejected.
4. The petitioners filed the present writ
petition, wherein notice was issued on 14.10.2019 and
stay of further proceedings before the trial Court was
granted.
5. Mr. Kshirsagar, learned counsel appearing for
the petitioners submitted that a perusal of the order
passed by this Court remanding the matter to the trial
Court would show that it was incumbent on the trial
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Court to have decided the question of willingness on the
part of the respondent (original plaintiff) on the basis of
the evidence available on record and there was no
question of granting opportunity to the respondent to
lead further evidence in the matter.
6. The learned counsel for the petitioners
placed reliance on the judgments of the Hon'ble
Supreme Court in the cases of Arjun Singh Vs. Kartar
Singh and Others, AIR 1951 SC 193 and Shenbagam
and others vs. K K Rathinavel (judgment and order
dated 20.01.2022) passed in Civil Appeal No. 150/2022
and judgment of this Court in the case of Saranghar
Vithal Wadhe vs. Shamrao Govinda Wadhe (Judgment
and order dated 20.12.2019) passed in Appeal From
Order No.52/2015.
7. On the other hand, Mr. Khan, learned
counsel appearing for the respondent submitted that the
order passed by this Court remanding the matter to the
trial Court did not specify that the issue pertaining to
willingness would have to be decided only on the basis
of available evidence.
8. It was further submitted that in the absence
of any such specific stipulation, there was no
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impediment for leading evidence on the said question,
particularly in the light of the aforesaid additional issue
No.5A framed by the trial Court after remand of the
proceedings.
9. The learned counsel placed reliance on the
judgment of the Hon'ble Supreme Court in the case of
United Bank of India Vs. Abhijit Tea Co. Pvt. Ltd. and
Ors, Ors., 2000 (4) ALL MR 875, as also judgment of
this Court in the case of Smt. Sonabai Sahebrao Pathrud
Vs. Bhausaheb Ganpati Gaikwad and Ors. 2020 (3) ALL
MR 496, to contend that upon setting aside of the
concurrent orders and remand of the proceedings to the
trial Court, the suit stood revived to be decided afresh.
On this basis, it was submitted that the impugned order
was justified.
10. This Court has heard the learned counsel for
the rival parties and perused the material on record.
Before adverting to the judgments relied upon by the
learned counsel appearing for the rival parties, it would
be appropriate to first refer to the above quoted portion
of the order of this Court remanding the matter to the
trial Court.
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11. Paragraph 8 of the above quoted portion
shows that this Court specifically stated that the
evidence on record shall have to be looked into by the
trial Court and findings on willingness would have to be
recorded. It is significant that in paragraph 9, quoted
above, both the concurrent orders passed by the Courts
below were set aside. Significantly in paragraph 10, this
Court specifically recorded that the matter stood
remitted to the trial Court for fresh decision in the light
of the observations in the said judgment.
12. In these circumstances, it needs to be
examined as to whether the trial Court could have
passed the impugned order permitting the respondent to
lead evidence on the aforesaid issue of willingness,
which in the first round of litigation had been ignored
by the trial Court as well as the appellate Court.
13. It is an admitted position that upon remand,
additional Issue No.5-A was framed specifically in the
light of the observations made by this Court in its
judgment while remanding the matter to the trial Court.
This Court is of the opinion that when the concurrent
orders passed by the two Courts below stood set aside
and the matter stood remanded to the trial Court, in
terms of the law laid down by the Hon'ble Supreme
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Court in the case of United Bank of India Vs. Abhijit Tea
Co. Pvt. Ltd. and Ors. (supra), proceedings before the
trial Court stood revived and the suit was open to be
decided afresh by the trial Court. If only there was a
specific stipulation in the order passed by this Court
remanding the proceedings to the trial Court that only
the available evidence would have to be looked into, the
contentions raised on behalf of the petitioners could be
accepted. In the absence of any such specific stipulation,
this Court is of the opinion that the impugned order
cannot be interfered with.
14. The whole purpose of the litigation to be
decided by the trial Court, which has been revived by
the order of remand passed by this Court, is for
ascertaining the facts about the truth of the rival claims
made by the parties. It is incumbent upon the trial
Court, on the proceedings being remanded, to return
findings on facts, particularly pertaining to the issue of
willingness as indicated by this Court. So long as this
Court did not specifically limit the exercise of such
jurisdiction by the trial Court to appreciation of only the
evidence available on record, it cannot be said that that
trial Court in the facts and circumstances of the present
case exceeded the scope of exercising its jurisdiction in
the light of this Court remanding the proceedings.
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15. A perusal of the judgments of the Hon'ble
Supreme Court relied upon by the learned counsel
appearing for the petitioners i.e. in the cases of Arjun
Singh Vs. Kartar Singh (supra) and Shenbagam vs. KK
Rathinavel (supra) would show that they are not
applicable to the facts of the present case. In the case
of Arjun Singh Vs. Kartar Singh (supra), the Hon'ble
Supreme Court was concerned with the extent of
jurisdiction that the appellate Court could exercise
under Order 41 Rule 27 of the Code of Civil Procedure
on the question of permitting additional evidence to be
adduced. Such is not the case in the present matter.
Insofar as the judgment in the case of Shenbagam vs.
KK Rathinavel (supra) is concerned, it is more on the
merits of the matter, in the context of the question of
readiness and willingness concerning a suit filed for
specific performance. This Court at the present, is not
concerned with the merits of the matter and therefore,
the said judgment would not be relevant for deciding
the present petition.
16. Insofar as the judgment in the case of
Sarangdhar Vithal Wadhe (supra) is concerned, it is
significant that in paragraph 36, wherein this Court has
rendered its final conclusion, it is specifically recorded
that this Court was inclined to remand the matter to the
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first appellate Court for fresh decision on the basis of
available evidence. The present case is distinguishable
from the aforesaid case on facts as this Court has not
given any specific stipulation that the trial Court would
have to decide the question of willingness on the part of
the respondent, only on the basis of available evidence.
Hence, reliance placed on said judgment would not take
the case of the petitioner any further.
17. On the other hand, the judgment of the
Hon'ble Supreme Court in the case of United Bank of
India (supra) and judgment of this Court in the case of
Smt. Sonbai Sahebrao Pathrud (supra) appear to be
relevant. In the case of Smt. Sonbai Sahebrao Pathrud
(supra), this Court has affirmed the attempt on the part
of the original plaintiff to amend the plaint upon the
proceedings being remanded to the trial Court, on the
basis that upon remand, the trial Court is to proceed
afresh on the basis that the suit stands revived.
18. In view of the above, this Court is of the
opinion that no case is made out for interference in the
impugned order.
19. Accordingly, the writ petition is dismissed.
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20. It is found that in the present case the suit
was filed by the respondent, as far back as in the year
2002. Even while remanding the matter, this Court had
stipulated a period of six months for disposal of the suit.
But, because of the interim order passed in the present
writ petition, the suit has remained pending.
21. In this backdrop, the trial Court is directed to
expeditiously dispose of the suit and in any case within a
period of three months from today.
JUDGE
Prity
Digitally signed
by PRITY S
GABHANE
PRITY S Date:
GABHANE 2022.04.22
18:11:39
+0530
