Narendra Jagdishchandra Bagga vs Dheeraj Bhagwandas Athwani
2023 Latest Caselaw 4165 Bom

2023:BHC-AS:12575
                                                                             12-SA-725-2022.doc


                    Arjun

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                   SECOND APPEAL NO.725 OF 2022
                                              WITH
                               INTERIM APPLICATION NO.19921 OF 2022
                                               IN
                                   SECOND APPEAL NO.725 OF 2022

                    Dr. Narendra Jagdishchandra Bagga              ...Appellant/
                                                                    Applicant
                            V/s.

                    Mr. Dheeraj Bhagwandas Athwani                 ...Respondent


                    Mr. Atul S. Tungare, for the Appellant/Applicant.
                    Mr. Mustafa Kachwala a/w Ms. Ketki Pansare i/b
                    Kachwala Misar Co., for the Respondent.
                    Mr. Bhagwandas Athwani present.
                    Mr. Lalit Athwani present.


                                               CORAM : MADHAV J. JAMDAR, J.

DATED : APRIL 25, 2023

P.C.:

1. Heard learned counsel appearing for the Appellant and

the learned counsel appearing for the Respondent.

2. Both the learned counsel point out order dated 14 th

November, 2022 passed by a learned Single Judge in Second

Appeal No.351 of 2022 filed by occupant of another premises

12-SA-725-2022.doc

which was owned by the mother of the present Respondent.

It is the contention of the Appellant that, same substantial

question of law is involved in the present Second Appeal and,

therefore, for the reasons set out in the said order, the

impugned judgment and decree of the learned First Appellate

Court is liable to quashed and set aside and the Appeal is

required to be remanded back to the First Appellate Court.

The said order dated 14th November, 2022 passed in the

Second Appeal No.351 of 2022 of the learned Single Judge

reads as under :

"1. Heard.

2. Respondent's suit being Special Civil Suit No.319 of 2013 for getting vacant possession of the suit property from the defendant was dismissed on 24th January, 2017 by an order of Small Causes Court, Pune.

3. The ad-hoc District Judge-7, Pune, vide impugned judgment dated 15th March, 2021 allowed the appeal and decreed the suit. As such, this second appeal.

4. Relying on the judgment of Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179, contentions are, the judgment impugned delivered by the Appellate Court sans the very scheme under Order XLI Rule

12-SA-725-2022.doc

31 of CPC as the Appellate Court is required to re- appreciate the entire evidence in the backdrop of pleadings and then record findings.

5. As such, the question of law which is sought to be raised is whether Appellate Court's judgment is in tune with the provisions of Order XLI Rule 31 of CPC. Counsel for the appellant so as to substantiate his contention relied on observations made in paragraph 15 of the Appellate Court judgment. Since there appears to be substance in the submissions made by counsel for the appellant, counsel for the respondent/decree- holder on instructions from the husband of the respondent/plaintiff who is present in the Court Mr. Bhagwan Athwani extend consent for remanding the present appeal to the First Appellate Court. As such, the present second appeal stands allowed. The judgment dated 15th March, 2021 delivered in Regular Civil Appeal No.409 of 2017 is set aside. The interim application also stands disposed of.

6. Said appeal stood restored to the learned District Judge, Pune before whom the parties assure to appear on 5th December, 2022.

7. As such, the issuance of fresh notice to the parties is dispensed with.

8. The Appellate Court is requested to dispose of the appeal expeditiously and in any case within six months from the date of appearance of the

12-SA-725-2022.doc

parties."

3. Learned counsel appearing for the Respondent agrees

that the question of law raised in the said Second Appeal

No.351 of 2022 is also the question of law in the present

Second Appeal and, he also states that, by setting aside the

impugned judgment and decree of the learned First Appellate

Court, the matter can be remanded back.

4. A perusal of the impugned judgment and decree of the

learned First Appellate court clearly shows that the same

has not been passed after appreciating the entire evidence on

record.

5. Therefore, the impugned judgment and decree dated

15th March, 2021 passed in Regular Civil Appeal No.408 of

2017 is quashed and set aside and the said Regular Civil

Appeal No.408 of 2017 is restored to the file of the learned

District Judge, Pune.

6. Parties to appear before the concerned District Judge,

Pune on 28th April, 2023 when the Regular Civil Appeal

No.409 of 2017 as remanded by said order dated 14th

November, 2022 is to be listed before the concerned District

Judge, Pune.

12-SA-725-2022.doc

7. The learned Appellate Court is requested to dispose of

the Appeal within a period of 6 months.

8. The Second Appeal is disposed of in above terms with

no order as to costs.

9. In view of disposal of the Second Appeal, nothing

survives in the Interim Application and the same is also

disposed of.

10. Learned counsel appearing for the Respondent states

that, father of the Respondent i.e. Mr. Bhagwandas Athwani

and brother of the Respondent i.e. Mr. Lalit Athwani both are

present in Court. He further states that, they have taken

instructions from Respondent-Mr. Dheeraj Bhagwandas

Athwani and, accordingly instructed him. He states that, he

has advanced submissions in accordance with the said

instructions.

[MADHAV J. JAMDAR, J.]