Bombay High Court
Babasaheb Genuji Dhas vs The State Of Maharashtra And ... on 21 February, 2022
Bench: Mangesh S. Patil
1 SA / 275 / 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 275 OF 2016
Babasaheb S/o Genuji Dhas,
Age 78 years, Occ. Agriculture
R/o Sapkal Galli, Paithan
A.P. Janhavi Residency,
Yeshwantnagar, Paithan
Dist. Aurangabad .. Appellant
(Orig. Plaintiff)
Versus
1] The State of Maharashtra
Through District Collector,
Aurangabad
2] The Tahasildar Paithan
R/o Tahasil Office, Paithan
3] The Chief Officer,
Municipal Council, Paithan
4] The Deputy Director of Resettlement
(Lands) Aurangabad
R/o The Office of the Deputy Director
of Resettlement (Lands) Aurangabad
5] Baliram S/o Shankar Deshmukh
Age 75 years, Occu. Pensioner,
R/o Narala Paithan, Dist. Aurangabad .. Respondents
(Orig. Defts.)
...
Mr. A.B. Kadethankar, Advocate for the appellant
Mr. B.V. Virdhe, AGP for respondents no. 1, 2 and 4
Mr. Sagar S. Ghate h/f. Mr. Swapnil S. Patunkar for J.P. Legal Associates for
respondent no. 3
...
CORAM : MANGESH S. PATIL, J.
DATE : 21 FEBRUARY 2022
ORAL ORDER :
Though this is an appeal under section 100 of the Code of
Civil Procedure, the only substantive question of law that arises for
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determination at this juncture is as to whether the lower appellate court
was justified in deciding the appeal without taking any decision on the
application that was filed by the present appellant who was also the
appellant before the lower appellate court under Order XLI Rule 27 of
the Code of Civil Procedure right in the teeth of the order and the
direction passed by this Court in writ petition no. 2688 of 2011 dated
06-01-2012.
2. I have heard the learned Advocate Mr. Kadethankar for the
appellant who is the original plaintiff, learned counsel for the respondent
no. 3 - Municipal Council and Mr. Virdhe, the learned AGP.
3. The respondent no. 5 who is the contesting respondent has
been duly served and represented by his learned Advocate Mr. Jadhav
but he is not present.
4. The appellant is the original plaintiff who filed the suit for
declaration that the allotment of a plot to the respondent no. 5 by the
State Government vide the order of the District Collector dated
10-02-1989 is null and void as he was not a person who was entitled to
allotment of the suit plot under the Maharashtra Project Affected
Persons Rehabilitation Act, 1986 and the scheme of the State
Government under that Act.
5. The trial court having refused to grant any declaration and
dismissed the suit, the appellant preferred the appeal before the district
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court. By the judgment and decree under challenge in this second
appeal, the appeal has been dismissed.
6. As can be appreciated from the point formulated herein-
above, during pendency of the appeal before the District Court, the
appellant submitted an application (Exhibit - 13) purportedly under Order
XLI Rule 27 of the Code of Civil Procedure for production of documents
at the appellate stage. Since that application was rejected by the
District Court, he preferred writ petition no. 2688 of 2011. By the order
dated 06-01-2012, observing that since it was an application under
Order XLI Rule 27 of the Code of Civil Procedure, it ought to have been
considered and decided along with the appeal, this Court had passed
the following directions in paragraph no. 5:
5. In that view of the matter, the impugned order is set
aside. The application under O. 41, R. 27 of the Code is
restored to its original file. The lower appellate Court is
directed to hear and decide the said application along with
the appeal, as expeditiously as possible, and if possible,
on day to day basis, within a period of six months from
today.
It is made clear that this Court has not expressed
any opinion on the merits of the matter. With these
directions, writ petition is disposed of.
7. For the reasons unknown, in spite of the specific directions
by this Court to decide that application under Order XLI Rule 27 of the
Code of Civil Procedure along with the appeal, the judgment and order
under challenge does not demonstrate about the lower appellate court
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having followed that direction and to have decided the application under
Order XLI Rule 27 of the Code of Civil Procedure.
8. Needless to state that it would neither be appropriate for
this Court to examine the aspect not only in respect of the merits of the
application which was filed by the appellant under Order XLI Rule 27 of
the Code of Civil Procedure nor would it be appropriate to consider the
worth of the document sought to be produced and its bearing on the
merits of the case. That is a matter which now the lower appellate court
will have to ponder upon and decide.
9. In view of such peculiar state-of-affairs, the Second Appeal
deserves to be allowed to the extent of the substantive question
formulated herein-above which is accordingly answered in the negative
and to remand the matter to the lower appellate court for decision afresh
by passing an appropriate order on the application filed by the appellant
under Order XLI Rule 27 of the Code of Civil Procedure.
10. The Second Appeal is allowed.
11. The impugned judgment and order passed by the lower
appellate court is quashed and set aside. The appeal is remanded to it
for deciding it afresh along with the application of the appellant filed
under Order XLI Rule 27 of the Code of Civil Procedure on merits, by
extending opportunity to both the sides to argue. The appellate court
shall decide the appeal as expeditiously as possible.
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12. The R & P be sent back to the lower appellate court
immediately.
13. The parties shall appear before the lower appellate court on
21-03-2022 and there shall be no need for it to issue any notice to the
parties. Costs in cause.
[ MANGESH S. PATIL ]
JUDGE
arp/
