Bombay High Court
Chhaya Sarjerao Andre vs Pyarelal L. Tiwari (Since ... on 8 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:22044
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.99 OF 2022
WITH
INTERIM APPLICATION NO.549 OF 2022
IN
SECOND APPEAL NO.99 OF 2022
Chhaya Sarjerao Andre ....Appellant/Applicant
V/S
Dr. Pyarelal L. Tiwari
deceased through Legal Heirs & Ors. ....Respondents
WITH
INTERIM APPLICATION NO.8653 OF 2024
IN
SECOND APPEAL NO.99 OF 2022
Dr. Pyarelal L. Tiwari
deceased through Legal Heirs & Ors. ....Applicants
IN THE MATTER BETWEEN
Chhaya Sarjerao Andre ....Appellant
V/S
Dr. Pyarelal L. Tiwari
deceased through Legal Heirs & Ors. ....Respondents
_________
Mr. Sachin S. Punde for the Appellants/Applicants in SA and IA 549 of 2022.
Mr. Drupad Patil a/w Ms. Srushti S. Chalke for Respondent Nos.1A to 1D in
SA and Applicants in IA 8653 of 2024.
__________
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CORAM: SANDEEP V. MARNE, J.
DATE : 08 MAY 2024.
P.C.:
1 By this Appeal, Appellant challenges the judgment and order dated 22
March 2021 passed by the Principal District Judge, Pune dismissing Civil
Appeal No.547 of 2016 and confirming the decree dated 28 September 2015
passed by Joint Civil Judge Junior Division, Vadgaon Maval in Regular Civil
Suit No.296 of 2012 (Old Special Civil Suit No.88 of 2008).
2 Plaintiff filed suit for specific performance of agreement for sale dated
28 July 2002 contending that the entire amount of consideration for
purchase of the suit property was already paid. Defendants were served with
suit summons and appeared in the suit. However, they did not file their
Written Statement. Accordingly, 'No WS' order was passed against all the
Defendants. Plaintiff examined three witnesses and after considering the
evidence on record, the Trial Court proceeded to decree the suit directing
the Defendants to execute the sale deed in respect of the suit property.
3 It appears that the decree passed by the Trial Court came to be
executed by execution of sale deed in favour of Plaintiff. After execution of
the decree, Appellant, who is original Defendant No.4, filed Civil Appeal
No.547 of 2016 before the District Court challenging the decree dated 28
September 2015. There appears to be some dispute as to whether original
Defendant Nos.1, 2, 3 and 5 filed Appeal against the decree of the Trial
Court. Mr. Punde, the learned counsel appearing for the Appellant would
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submit that Defendant Nos.1 to 3 had also filed their Appeal, which came to
be withdrawn subsequently. However, there is nothing on record to indicate
so. Be that as it may, the First Appellate Court proceeded to dismiss Appeal
filed by the Appellant on 22 March 2021. Aggrieved by the decrees passed
by the Trial and First Appellate Court, the Appellant has filed present
Second Appeal.
4 Mr. Punde would submit that the Trial Court has committed a gross
error in relying on the Affidavits of evidence of PW1 and PW2, who had
merely tendered their Affidavits of evidence. That admittedly PW1 and
PW2 did not enter into witness box and that the procedure contemplated
under Order 18, Rule 4 of the Code of Civil Procedure, 1908 (Code) is not
followed and therefore their evidence required to be discarded. In support of
his contention, Mr. Punde would rely on judgment of this Court in FDC
Ltd. vs. Federation of Medical Representatives Association India
(FMRAI), AIR 2003 Bombay 371. He would submit that Defendants are
denied right of cross-examination in respect of PW1 and PW2, who never
entered the witness box. He would also contend that their Affidavits of
evidence were erroneously taken on record by the Trial Court on
unscheduled day of hearing. That the hearing of the suit was adjourned to 7
September 2014 and the Trial Court took the suit on board on 6 August
2014 behind the back of the Defendants and took the Affidavits of evidence
of PW1 and PW2. He would submit that since the errors committed by the
Trial Court in taking on record Affidavits of evidence of PW1 and PW2 go to
the root of the matter, Appellant is entitled to raise the said issue in the
present Second Appeal.
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5 Mr. Punde would further submit that in absence of evidence by the
Plaintiff, readiness and willingness to perform Plaintiff's part of contract has
not been proved and therefore the suit ought to have been dismissed by the
Trial Court. He would further submit that the agreement for sale was
executed on 28 July 2002, whereas the suit was filed on 17 December 2008
and that therefore the suit was clearly barred by limitation.
6 Per contra, Mr. Patil, the learned counsel appearing for Respondent
No.1-original Plaintiff would oppose the Appeal and support the decrees
passed by the Trial Court and the First Appellate Court. He would submit
that even if it is assumed that there is any procedural irregularity in taking
into consideration the evidence of PW1 and PW2, it is undisputed that PW3
entered the witness box and gave evidence about execution of the agreement
and payment of earnest money. That therefore once the execution of the
agreement is proved, in absence of any defence by the Defendants, the Trial
Court has rightly decreed the suit. Mr. Patil would also take me through the
relevant statements/certificates issued by the Bank in support of his
contention that various amounts paid by the Plaintiffs were received in the
account of Gangaram Kondu Kondbhar. He would pray for dismissal of the
Appeal.
7 After considering the submissions canvassed by the learned counsel
appearing for parties, it is seen that only Defendant No.4 has filed the
present Appeal. Perusal of the decree passed by the First Appellate Court
would indicate that Civil Appeal No.547 of 2016 was also filed by the
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Appellant alone. Though Mr. Punde has contended that the brothers
(Defendant Nos.1 to 3) had also filed Appeal before the First Appellate
Court, he submits that the said Appeal was withdrawn. This would clearly
show that Defendant Nos.1 to 3 and 5 have accepted the decree. Only
Defendant No.4 is agitating the issue of correctness of the decree passed by
the Trial Court by filing the present Second Appeal. It is also required to be
noted that Defendant No.4 did not file Written Statement opposing the suit.
Though she has sought to question the procedure adopted by the Trial
Court in taking Affidavits of evidence of PW1 and PW2 on record in absence
of the said witnesses entering in the witness box, the record would indicate
that PW3 Shri Santosh Tiwari had entered the witness box and his
examination-in-chief is conducted on 10 March 2015. Defendant
No.4/Appellant however did not bother to cross-examine PW3.
8 Though procedural irregularity is sought to be agitated in respect of
taking the suit on board on 6 August 2014 and in taking on record the
Affidavits of evidence of PW1 and PW2, it appears that the Appellant was
present before the Court through her advocate on subsequent dates on 17
September 2014 and 29 October 2014, 28 November 2014 and 3 November
2015. She did not raise any objection to taking on record the Affidavits of
evidence of PW1 and PW2 or about preponing the date of hearing of the suit
to 6 August 2014.
9 Though Mr. Punde has strenuously sought to rely upon provisions of
Order 18, Rule 4 of the Code for demonstrating the procedural requirement
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of witness entering in the witness box, perusal of the grounds of Appeal
raised before the First Appellate Court would indicate that these grounds
were not raised before the First Appellate Court. Mr. Punde is quick enough
to point out that since the issue is pure question of law, the same can always
be agitated directly in the present Second Appeal. He would also rely upon
provisions of section 105 of Code in support of his contention that every
order passed during course of Trial can always be challenged in a substantive
Appeal. He would also place on record additional grounds which according
to him demonstrate clear error on the part of the Trial Court if not following
the procedure under Order 18, Rule 4 and 5 of the Code. In my view
considering the facts and circumstances of the present case, it is not
necessary to give any importance to the alleged procedural lacuna in not
getting PW1 and PW2 in the witness box and recording their examination-
in-chief. Appellant/Defendant No.4 was without the Written Statement.
Despite availability of opportunity, she did not cross-examine PW3. It is
therefore highly doubtful whether she would cross-examined PW1 and PW2
as well. Execution of the agreement is proved. Payment of consideration is
also proved by production of relevant bank certificates. In the light of these
facts and circumstances of the case, Appellant cannot be permitted to
frustrate the decree passed after prolonged litigation between the parties by
raising technical objections. Therefore reliance of Mr. Punde on judgment of
this Court in FDC Ltd. (supra) would not assist the case of the Appellant.
10 The decree of the Trial Court has already been executed and the sale
deed is executed by the Court Commissioner. Considering the overall
conspectus of the case, I am of the view that no substantial question of law is
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involved in the present Appeal. There is no point in further prolonging the
litigation which has already ensued for 16 long years between parties.
Second Appeal is accordingly rejected.
11 With rejection of Appeal, both the Interim Applications do not
survive. The same are also stand disposed of.
(SANDEEP V. MARNE, J.)
