Usha Sunil Gorde vs Sharda Denial Gorde
2022 Latest Caselaw 5309 Bom

                                                                               19-sr.36.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          SECOND APPEAL NO.181 OF 2022
                                       WITH
                        CIVIL APPLICATION NO.5049 OF 2022

Usha Sunil Gorde,
Age:47 years, Occ. Agri.,
r/o. Kukana, Tq.Newasa,
Dist. Ahmednagar                                                 ..Appellant

        Vs.

Sharda Denial Gorde,
Age : 60 years, Occ. Agri.,
r/o. Kuka, Tq. Newasa,
Dist. Ahmednagar                                                 ..Respondent

                            ----
Mr.Navin S. Shah, Advocate h/f. Mr.K.N.Lokhande, Advocate for
appellant

Mr.H.D.Deshmukh, Advocate for respondent
                               ----

                                    CORAM : R.G. AVACHAT, J.

DATE : JUNE 13, 2022 ORDER :-

Heard learned counsel for the parties.

2. This Second Appeal has been moved by original defendant

in a suit preferred by the respondent/plaintiff for redemption of

mortgage. The trial Court had decreed the suit. The appellant herein

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had preferred a first appeal along with an application for

condonation of delay. Delay was of 186 days.

3. Learned counsel for the the appellant submits that the

appellant/defendant was not aware of the decree having been

passed in the suit. According to him, no written statement could be

filed in the suit. The first appellate court refused to condone the

delay in preferring the first appeal. The reason given by the first

appellate Court was that the appellant was not diligent in

prosecuting the suit. The Court found the appellant to have been in

the know of the decree passed in the suit.

4. Learned counsel for the respondent/plaintiff has relied on

a judgment of this Court in the case of Ramchandra Nathu Ghadage

and ors. Vs. Rajaram Nathu Ghadage, since deceased, by his L.Rs.

and ors., 2007(5)Bom.C.R. 354, wherein a substantial question of

law based on somewhat similar facts, has been answered which

favours the respondent herein.

5. Considered the submissions advanced. The subject-

matter is agricultural land, said to have been given on mortgage

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under a registered deed titled as `sale deed'. This Court has gone

through the said document. It would be for the first appellate court

to interpret the said document. Interpretation of the document

based on its contents, is necessarily a substantial question of law.

Instead of doing this exercise in this Second Appeal, let the matter

be decided by the first appellate Court on its own merits. Although

the appellant herein had not filed written statement in the suit

before the trial Court, he makes a statement that he would

participate in the first appeal and would not urge for remand of the

suit. He would have to be given an opportunity to make submission

as to whether the document in question was out and out sale with

an option to repurchase or mortgage by conditional sale. That

exercise can very well be done by the first appellate court after

going through the contents of the said document by giving

opportunity to both the parties to put forth their submissions.

6. Since immovable property was involved in the matter

and the appellant herein did not have an opportunity, for one or the

other reason, to contest the suit and the first appeal as well, this

Court is inclined to allow present Second Appeal remanding the

matter back to the first appellate Court, which shall decide the same

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on its own merits, after giving full opportunity to the parties thereto

and assuming that the appellant herein has contested the suit before

the trial Court, particularly, disputing nature of the document. The

Second Appeal is, thus, allowed and disposed of accordingly with

costs of Rs.5,000/- (Rupees Five Thousand) to be paid before the

first appellate Court. The first appellate Court is requested to decide

the appeal within a period of eight months from the date of receipt

of a copy of this order.

7. In view of disposal of the Second Appeal, the Civil

Application stands disposed of.

[R.G. AVACHAT, J.]

KBP