Bombay High Court
Smt. Parvatibai W/O. Trimbak ... vs Waman Anandrao Deshpande ... on 3 February, 2022
Bench: S. K. Shinde
(13)-AO. 761-2015 aw CAA-930-2015.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Appeal from Order No. 761 / 2015
Alongwith
Civil Application No. 930 / 2015
in
Appeal from Order No. 761 / 2015
Smt. Parvatibai w/o Trimbak
Deshpande (Deceased) and Others. ... Appellants
[Original Plaintiffs]
Versus
Waman Anandrao Deshpande (Deceased)
His Legal Heirs and Others. ... Respondents
[Original Defendants]
****
Mr. G.H. Keluskar, Advocate for the Appellants.
Mr. Drupad S. Patil, Advocate for Respondents 1A to
1C, 3A to 3C, 3E to 3AM, 5A to 5.
****
CORAM : SANDEEP K. SHINDE, J.
RESERVED ON : 06th JANUARY, 2022.
PRONOUNCED ON : 03rd FEBRUARY, 2022.
[Through Video Conference]
ORDER :
1. This Appeal under Order 43 Rule-1(u) read with
Section 104 of the Civil Procedure Code, challenges
the order of remand dated 9th January, 2015 passed in
Civil Appeal No. 748/2001 by the Ad-hoc District
Judge - 6, Pune.
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2. In brief, facts of the case are as follows:
Appellants-Plaintiffs, instituted Regular Civil Suit
No. 2195/1980 in the Court of the learned Civil
Judge, Junior Division, Pune in November, 1980, to
seek decree of mandatory injunction; possession;
cancellation of sale deed; and declaration that
Defendant No.1 and 5 had no right in suit property
described in Paragraph No.1 of the plaint. The
learned trial Court partly decreed the suit on 30th
June, 2001 in the following terms;
ORDER
"1. The suit is partly decreed.
2. The plaintiffs being owners of property No.4 (as
described in plaint para-1-A), they or any person
on their behalf are entitled to execute decree for
possession of this property from the possession of
defendants or from any person on their behalf.
3. The defendants will have to vacate the partition
of (plinth page) in case it is in the property
No. 4 (as detailed described in plaint para-1-A).
4. The sale deed executed against the interest of the
plaintiffs so far property No.4 (as referred in
earlier) is not binding on the plaintiffs.
5. The plaintiffs or authorized person on their
behalf are entitled to prefer proceeding for
determination of mesne profits against the person
found in possession of property No.4.
6. No order as to costs.
7. Prepare preliminary decree."
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3. The Plaintiffs challenged the decree of the
trial Court in Civil Appeal No. 748/2001.
4. The Appellate Court vide judgment and order
dated 9th January, 2015 set aside the decree of the
trial Court and remanded the matter to the 5th Joint
Civil Judge, Junior Division, Pune with directions
"to join the proposed Defendant Nos. 6 to 8 in the
suit/plaint as per the application Exhibit-94 and
decide the matter afresh by giving opportunity to
both parties to lead evidence, if any."
5. Aggrieved by order of remand purportedly passed
under Order-41 Rule-23A of the Code of Civil
Procedure (CPC), Plaintiffs have preferred this
appeal under Order-43 Rule-1(u)read with Section 104
of CPC.
6. I have perused the judgment of the trial Court;
impugned judgment and order below Exhibit-94 (an
application moved by the Plaintiffs under Order-1,
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Rule-10(2) of the CPC), wherefrom following facts
were emerging;
(i) Appellants instituted Regular Civil Suit No.
2195/1980 in November, 1980, seeking decree of
mandatory injunction; declaration and cancellation
of sale deed qua suit properties described 1(a) and
1(b).
(ii) The Defendant Nos. 1, 2 and 4 had filed suit
for partition bearing RCS No. 367/1962 against
Trimbak Deshpande, (Predecessor in title of the
Plaintiffs), wherein decree was passed and the suit
property came to be allotted to the share of
Defendant Nos. 1 and 2.
(iii) Whereafter Defendant Nos. 1 and 2 sold their
share in the suit property to Defendant No.3 on 18th
August, 1970.
(iv) After which, the Defendant No.3 sold the suit
property to Defendant No.5 on 31st July, 1980.
(v) The Plaintiffs or their Predecessor in title,
had filed Regular Civil Suit No. 360/1971 concerning
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suit property but he withdrew the same.
(vi) The Defendants in the back drop of the facts
aforesaid, contended that the suit in question i.e.
RCS No. 2195/1980 was not maintainable.
(vii) Defendant Nos. 1 and 2 contended that the
relief sought by the Plaintiffs qua sale deed dated
18th August, 1970, was 'barred by limitation'.
(viii) Pending suit the legal representatives of
the Defendant No.3 and 5 sold the suit property or
part of it to one Shankar Bajirao Dhonde vide sale
deed dated 29th December, 1997.
(ix) Pending suit, Plaintiffs sold the suit property
and such other two properties, on 15th March, 1983 to
Jayawantrao Ganpatrao Shinde and Dattatraya Manohar
Chandge.
(x) Although, the Plaintiffs had filed an
application Exhibit-94 under Order-1 Rule-10(2) of
the CPC to implead the Purchasers as a party
Defendants, the application was rejected by the
learned trial Court relying on the rule in the case
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of Sarvinder Singh Vs. Dilip Singh and Others [1997
(1) Mh.L.J. 539].
. Regardless of these facts, neither the trial
Court nor Appellate Court referred to judgments
passed in the previous suits to ascertain, whether
those suits were relating to the suit property and
if answer was in affirmative then, whether the suit
in question was maintainable. Moreover, the trial
as well as the Appellate Courts have not looked into
to the sale deeds executed by the parties in respect
of suit property and examined its effects.
Therefore, essentially proper issues were not
framed. Likewise, the trial Court has not examined
the issue as to whether alienation of the suit
property or its part by the Plaintiffs, in favour of
Jayawantrao Ganpatrao Shinde and Dattatraya Manohar
Chandge, was legal and proper and in turn its
effect. Besides, the trial Court has not examined
the sustainability of transfer of the suit property/
or part of it, by the legal heirs of Defendant Nos.
3 and 5 to Shankar Bajirao Dhonde.
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7. That being so, the proceedings before the Lower
Court were irregular or defective and the points of
essence have been ignored and not touched upon.
Therefore it is a case to order retrial in the suit.
Obvious reason is, not framing and answering,
essential issue, which arose from pleadings of the
parties, which has caused and resulted in failure of
justice. I am conscious of the fact that remanding
of a case though is discretion of the Appellate
Court, but this discretion has very strict
parameters. As a general rule, if Appellate Court
can do complete justice on the basis of the record
before it, the Appellate Court must not remand the
case as it will entail more time and money of the
litigants. Rather Appellate Court should decide
matters finally instead of remanding the cases,
unless there is a chance of miscarriage of justice.
Therefore, Only those cases could be remanded which
could not be decided on the bases of available
material on record.
8. Thus, for the reasons ascribed, the judgments of
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the Appellate and the trial Courts are set aside.
The matter is remanded to the trial Court for
retrial. Suit be readmitted under its original
number in the Register of Civil Suit. For all
purposes, this would be an order of remand under
Order-41 Rule-23A of CPC.
9. The party shall appear before the learned trial
Court on 4th March, 2022.
10. Appeal is disposed of in the aforesaid terms.
(SANDEEP K. SHINDE, J.)
Digitally signed
by
MOHAMMAD MOHAMMAD
NAJEEB
NAJEEB MOHAMMAD
MOHAMMAD QAYYUM
QAYYUM Date:
2022.02.03
16:27:23 +0530
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