Bombay High Court
Kamlakar Chhaganrao Khardekar Lrs ... vs Lalitprasad Bhalaprasad Jaiswal on 17 January, 2024
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 644 OF 2015
Kamlakar Chhaganrao Khardekar
(Deceased) through LRs .. Appellant
Versus
Lalitprasad s/o Bhalaprasad Jaiswal .. Respondent
Mr. R. J. Nirmal, Advocate for the appellant.
Mr. S. P. Shah, Advocate for the respondent.
CORAM : R. M. JOSHI, J.
DATE : 17th JANUARY, 2024.
PER COURT :
1. This appeal is filed under Section 100 of Code of Civil
Procedure taking exception to the judgment and decree dated 2 nd
February, 2015 passed in Regular Civil Appeal No. 207/2007
confirming dismissal of suit being Special Civil Suit No. 180/1998
with exemplary cost.
2. Parties are referred to by their nominclature in the
original proceeding for the sake of convenience.
3. Learned counsel for the plaintiff submits that the Trial
Court has committed error in initially refusing to consider the
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evidence of witness Idris recorded in Special Civil Suit No. 4/1996
and in the next breath, the Court has considered the evidence on
merit. This, according to him, amounts to be an error in law. As
regards judgment of First Appellate Court, it is argued that the First
Appellate Court has wrongly upheld refusal by Trial Court of the
request of the plaintiff to examine Idris as witness with observation
that it is futile to examine him once his evidence is recorded in
Special Civil Suit No. 4/1996.
4. Record indicates that an application was moved before
the Trial Court for recording evidence of Idris. This application came
to be rejected with observation that since evidence recorded in
Special Civil Suit No. 4/1996 is relied upon by the plaintiff, it would
only amount to repetition of evidence. The entire endeavour of
plaintiff before the First Appellate Court was to convince the Court
that the Trial Court has initially taken view about not considering
evidence of Idris however, eventually, while passing judgment the said
evidence was considered. In the facts and circumstances of the case,
no perversity can be found with this order passed by the Trial Court.
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5. On the point of dismissal of suit with compensatory cost
of Rs. 3,000/-, it is sought to be argued by learned counsel for
plaintiff that that no finding is recorded by the Trial Court that the
agreement of sale on the basis of which the suit came to be filed was
forged document. He also contends that as defendant has not
entered the witness box, the suit ought not to have been dismissed
with compensatory cost. For the purpose of deciding this issue,
material evidence on record was sufficient. It is not law that for the
purpose of imposing compensatory cost against plaintiff, defendant
must examine himself. This can be certainly decided on the basis of
available material on record and having regard to the facts and
circumstances of case. Perusal of judgment of Trial Court shows that
findings are recorded with regard to frivolity of the suit by giving
proper reasons. In the facts and circumstances of case the said
finding is not perverse. Hence, no interference is called for therein.
Having regard to the aforestated facts, no substantial question of law
is involved in this appeal. Hence, appeal stands dismissed.
( R. M. JOSHI)
Judge
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