Bombay High Court
Ganpat Baburao Barve And Ors vs Kishabai Baburao Barve @ Kishabai W/O ... on 11 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:26039
1 19-sa-262-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT
AURANGABAD
SECOND APPEAL NO. 262 OF 2021
WITH CA/5673/2021
GANPAT BABURAO BARVE AND ORS
VERSUS
KISHABAI BABURAO BARVE @ KISHABAI W/O PARAJI YAMGAR
AND ORS
...
Advocate for Appellants : Mr. Salgar S. P.
Advocate for Respondent Nos.1 to 4 : Mr. C. C. Deshpande.
...
CORAM : S. G. MEHARE, J.
DATE : DECEMBER 11, 2023
PER COURT :-
1. Heard the learned counsel for the appellants and the
learned counsel for the respondents.
2. It is a case wherein the written statement was filed,
but the learned counsel representing the present appellants did
not inform them about the progress in the trial, nor he attended
the case on the date of the final argument. Therefore, the learned
Trial Court accepted the unshattered evidence of the plaintiffs and
decreed the suit. The appellants, who were the defendants, have
specifically raised the ground that the counsel representing them
did not inform them. Therefore, their case that the properties
standing in the names of their sons were their self acquired
property could not be proved. The First Appellate Court did not
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even touch the ground Nos. (G) and (K) raised in the appeal
memo.
3. Learned counsel for the respondents would submit
that merely blaming the lawyer is not sufficient to believe the
appellants. It is the duty of the party to the suit to attend the Court
on each date and be in contact with the lawyer. The grounds for
remand prayed before the First Appellate Court were not
satisfactory. Hence, they were not required to be discussed.
Otherwise, on merit, the present appellants had no good case.
Both Courts have considered the material documents placed before
them and correctly passed the impugned judgments and decrees.
4. Perused the impugned judgments and decrees. The
counterclaim was also filed in the suit. Admittedly, the present
appellants did not attend the Court, and the matter proceeded ex-
parte i.e. without leading the evidence and cross-examining the
plaintiffs' witness. A substantial right of exclusive ownership over
some of the properties described in the suit was involved for the
consideration, but only for the failure to appear and cross-examine
the witnesses; the denial of the right to prove the title would not
be justifiable. The record also reveals that the lawyer did not
appear and argued the matter on the day of the argument. Hence,
there is scope to believe the appellants that the lawyer did not
inform them of the stage of the trial. It is true that it is the duty of
3 19-sa-262-2021
the parties to the suit to attend the trial and keep in contact with
the lawyer. But in this case, the lawyer appointed by the appellants
did not even take pains to appear before the Court and advance
the arguments. That could have enlightened the Court on the legal
positions of law. No party should suffer for the mistakes and
wrongs committed by others. It is a suit for partition by the sisters
and one of the brothers. The substantial questions of acquiring the
title under a document that was not registered and acquiring the
property from one's own income go to the root of the case. Hence,
in the interest of justice, the Court is of the view that the appeal
deserves to be allowed and that an opportunity needs to be
granted to the appellants to contest the suit on merit. Some issues
were also required to be framed by the trial Court. Hence, the
following order :
ORDER
(i) The appeal stands allowed.
(ii) The impugned judgment and decree of the learned Court of
Civil Judge Junior Division, Sonpeth in R.C.S. No.139 of 2008
dated 19.03.2013 and the judgment and decree of the District
Judge-1, Gangakhed in R.C.A. No.8 of 2015 dated 06.03.2021 are
set aside.
(iii) The case is remitted to the Court of learned Civil Judge
Junior Division, Sonpeth, for the decision on merit by granting an
4 19-sa-262-2021
opportunity to both sides to lead the evidence afresh and frame
the issues, if proposed by either of the parties.
(iv) Both parties shall appear before the Court of learned Civil
Judge Junior Division, Sonpeth, on 09.01.2024 at 11.00 am sharp.
(v) The learned Court of first instance shall decide the suit
within three months from the date of appearance of the parties.
(vi) Both parties shall cooperate with the Court.
(vii) Record and proceedings be returned to the learned Court of
first instance.
(viii) Civil Application No.5673 of 2021 stands disposed of.
(S. G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 13/12/2023 18:40:16
