M/S. Fiza Construction Thr. Its ... vs Smt. Jayram Gopal Thakur Thr. Lrs. ...
2023 Latest Caselaw 6370 Bom

2023:BHC-AS:18507

                                                                    11-AO-472-23+.DOC

                                                                        Sayali Upasani

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION

                           APPEAL FROM ORDER NO. 472 OF 2023
                                         WITH
                         INTERIM APPLICATION NO. - 12866 OF 2023

              M/s. Fiza Construction through its Prop.                  ...Appellant
              Shri. G. R. Mujawar

                                             Vs.
              Smt. Jayram Gopal Thakur through LRs                ...Respondents
              Shri. Mangesh Jayram Thakur and Others


              Mr. R. A. Thorat, Senior Counsel a/w Ms. Pratibha Shelke
              i/b Mr. Nitin B. Patil, for Appellant.
              Mr. Vaibhav Parshurani i/b Vallari J., for Respondent Nos.
              1 and 2.
                                                 CORAM:- N. J. JAMADAR, J.

DATED:- 5th JULY, 2023 P.C.:-

1) This Appeal is directed against a judgment and order

dated 28th March, 2023, passed by the Adhoc District Judge-1,

Panvel, Raigad in RCS No. 376 of 2019, whereby the learned

District Judge was persuaded to allow the Appeal and set aside

the judgment and decree passed by the learned Civil Judge in

Special Civil Suit No. 643 of 2010, dated 24 th September, 2012,

and remand the matter back for retrial to the trial Court

invoking the provisions contained in Order XLI Rule 23A of the

Code of Civil Procedure.

11-AO-472-23+.DOC

2) The appellants are the original plaintiffs in whose favour

the learned Civil Judge Senior Division had passed a decree for

specific performance in Special Civil Suit No. 643 of 2010.

3) The principal reason, which weighed with the learned

District Judge was that the defendant Nos. 1 and 2 had not

had an effective opportunity to cross-examine the plaintiffs

witnesses and adduce the evidence.

4) Dr. Thorat, the learned Counsel for the appellant

submitted that the learned District Judge committed a

jurisdictional error in not delving into the merits of the matter

and remanding the Appeal only upon consideration as to

whether the defendant Nos.1 and 2 had an effective

opportunity of hearing. It was submitted that the record of the

trial Court would indicate that the defendant Nos. 1 and 2

were, in fact, provided an efficacious opportunity.

5) I have perused the impugned judgment. It seems that the

trial Court had issued notice to the defendant Nos. 1 and 2 as

the Advocate who represented the defendant Nos. 1 and 2 had

sought discharge and despite service of the said notice, the

defendant Nos. 1 and 2 had not appeared and, thereafter, the

trial Court proceeded with the suit in absence of defendant

Nos. 1 and 2. In the totality of the circumstances, in my view,

the learned District Judge was justified in remitting the matter

for trial for afresh decision with a view to provide an effective

opportunity of hearing and have a decision on merits.

11-AO-472-23+.DOC

6) Since the trial proceeded ex-parte from the stage of the

cross-examination of the plaintiffs witness, it may be expedient

to modify the impugned order to the extent that the trial shall

commence from the stage of cross-examination of the plaintiffs

witnesses.

7) It is needless to clarify that the defendant shall be

provided an opportunity to adduce evidence in accordance with

law.

8) Since the suit for specific performance of an agreement,

purportedly executed on 11th March, 2008, has been instituted in the year 2010, the trial Court is requested to make an

endeavor to decide the suit as expeditiously as possible and

preferably within a period of nine months from the date of the

communication of this order.

9) Till the decision of the suit, the ad-interim order passed

by this Court, restraining the defendant from creating third

party interest in the suit property shall continue to operate.

10) Subject to the aforesaid clarification, the Appeal stands

disposed.

11) In the circumstances, there shall be no order as to costs.

12) In view of the disposal of the Appeal, the Interim

Application also stands disposed.

[N. J. JAMADAR, J.]