(1)
SECOND APPEAL NO.1498 OF 2005 WITH
CIVIL APPLICATION NO.9720 OF 2005
Date of decision: 14TH AUGUST, 2008
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.B. DESHMUKH
1. Whether Reporters of Local Papers }
may be allowed to see the Judgment? }
2. To be referred to the Reporter or not }
3.
Whether Their Lordships wish to see
the fair copy of the Judgment?
}
}
4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of }
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat]
Personal Assistant to
the Honourable Judge.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO.1498 OF 2005
Mukund Ramchandra Kolapkar,
Age-52 years, Occ: Business,
R/o-Ashvi Kh. Tq-Sangamner,
Dist-Ahmednagar.
.... APPELLANT.
VERSUS
1) Kisan Tryambak Gaikwad,
Age-48 years, Occ: Agril.
2) Dnyandeo Murlidhar Gaikwad,
Age-47 years, Occ: Agril.
Both R/o-Ashvi Kh. Tq-Sangamner,
Dist-Ahmednagar.
.... RESPONDENTS.
WITH
CIVIL APPLICATION NO.9720 OF 2005
...
Mr.V.J. Dixit Senior Advocate for the
Appellant.
Mr. S.K. Shinde Advocate for the
Respondents.
...
CORAM: S.B. DESHMUKH, J.
DATE : 14TH AUGUST, 2008.
ORAL JUDGMENT:
1. Heard learned Senior Advocate Mr. Dixit
for Appellant and learned Advocate Mr. Shinde who
appears for the Respondents.
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2. This Second Appeal is filed by the original
defendant in Regular Civil Suit No. 129 of 2003.
The parties, hereinafter, are referred to their
status in Regular Civil Suit No.129 of 2003.
Plaintiff’s Regular Civil Suit No. 129 of 2003
has been decreed by the trial court and defendant,
his servants, agents, or anybody claiming through
him are permanently restrained from causing the
obstructions to the peaceful possession of the
suit property. This Judgment and decree was
passed by
the trial court on 5/4/2004. It was
assailed by the defendant by filing Regular Civil
Appeal No. 35 of 2004. The First Appellate
Court, after hearing the parties, dismissed the
Appeal filed by the defendant vide its Judgment
and decree passed on 14/6/2005. It is this
Judgment and decree of the First Appellate Court
is challenged by the defendant/ Appellant in this
Second Appeal.
3. This Second Appeal was listed for admission
before this Court and after hearing the parties,
this Court has admitted the Appeal by its Order
passed on 19/1/2006 on two points/ grounds. These
are reproduced herein below:-
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“(i) Whether the trial court committed
error in not hearing R.C.S. No.129/2003
and R.C.S. No. 130/2003 together?
(ii) Whether it is a fit case to remand the
matter to the trial Court for hearing both
the suits together?”
4. Since the Appeal is already admitted and
now I have heard
ig for final hearing, I am
restricting this Order to those two grounds/
points on which this Court has admitted the Second
Appeal. For this reason, I am not adverting to
description of property and various contentions of
the parties.
5. The pleading of the party is material and
important in civil proceedings. Term ‘pleading’
is defined in Order VI Rule 1 of the Code of Civil
Procedure. Plaint shall mean pleading of the
plaintiff and written statement shall mean
pleading of the defendant. Parties to the Suit
are expected to plead material facts and not
evidence as provided in Order VI Rule 2 of the
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Code of Civil Procedure. In a given case the
defendant may not be knowing certain circumstances
or facts. In that contingency, such defendant and
even if plaintiff in a given case, is not aware of
some circumstances in the case, such parties i.e.
plaintiff and defendant, may resort to the
interrogatories provided under Order 11 of the
Code of Civil Procedure. Notice of documents can
be given, if necessary and party possessing the
document may be compelled to produce on record ,
with the aid of the provisions of the Code of
Civil
Procedure and mechanism provided thereunder
and by the orders of the Civil Court. Thus,
parties have to plead their case or stance in
their pleadings. It is this pleading which is to
be supported by the parties while leading oral or
documentary evidence. Parties cannot travel
beyond their pleadings. Even if parties adduced
oral evidence besides their pleadings, such
evidence cannot be considered by the Courts and
Courts have to ignore such evidence, which is not
in consonance with the pleadings. In short,
pleading is a foundation of the stance taken by
the party in a Civil Suit. The pleadings of the
party also is required to be considered by the
trial court under Order 14 of the Code while
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framing the issues. The trial court has to settle
the issues and in view of the issues settled by
the Court, parties are put on notice to lead the
evidence. The importance of the pleadings is
considered by the Supreme Court (See
See State Bank of
India v/s. Mr. S.N. Goyal, 2008 A.I.R. S.C.W.
Page No.4355).
6. The learned counsel Mr. Dixit, has invited
my attention to the copy of the written statement
filed by the defendant in Regular Civil Suit No.
129 of 2003.
ig From this copy of the written
statement, Mr. Dixit, has pointed out the fact of
pendency of Regular Civil Suit No. 130 of 2003.
7. After denial in the written statement,
defendant has pleaded his own case i.e. purchase
of the property by the defendant. To illustrate
the property which is purchased by the defendant,
he has annexed the copy of the rough sketch along
with the written statement. The property which is
purchased by the defendant, is shown in yellow
colours in the map annexed with the written
statement. It appears that the property purchased
by the defendant is part of Gat No.6. Location of
the property purchased by the defendant is also
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specifically shown in this rough sketch/ map.
Regarding pendency of the Regular Civil Suit No.
130 of 2003 filed by the defendant, in paragraph
A-11 of the written statement, it is stated by the
defendant that the defendant has filed Regular
Civil Suit No.130 of 2003 in the Court for
declaration and cancellation of the sale deed of
the present plaintiff. In paragraph A-14 of the
written statement, it is requested that Regular
Civil Suit No. 129 of 2003 and defendant’s
Regular Civil Suit No. 130 of 2003 should be
tried together.
ig It is also requested that the
Court to take appropriate action for trying these
two Suits together. This written statement seems
to have been filed on 10/11/2003.
8. Mr. Dixit, learned counsel has also
invited my attention to the Memo of Appeal, which
is on record. It is not in dispute that defendant
in the case on hand, was appellant before the
First Appellate Court in Regular Civil Appeal No.
35 of 2004. Ground No. XXII in the Memo of the
Appeal filed by the defendant i.e. Regular Civil
Appeal No. 35 of 2004 reads thus:-
“The pleading in the suit No. 130 of 2003
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7was not considered by the learned lower
court along with the written statement.”
. In paragraph 3 of the Memo of the Appeal of
Regular Civil Appeal No. 35 of 2004 it has been
stated by the appellant (defendant) that:
“the present appellant filed Civil Suit
bearing No. 130 of 2003 before the 2nd
Joint Civil Judge, J.D., Sangamner along
with an application for injunction against
the present
ig respondents and Bhadakwadfamily. The court was pleased to pass an
injunction against the respondents not to
disturb the possession of appellant over
Gat No. 6/2/1. On the same day, the suit
bearing R.C.S. No. 129 of 2003 was filed
by the present respondents against which
this appeal is going to file.”
. In ground No.VI it has been stated by the
appellant therein in Regular Civil Appeal No. 35
of 2004 that the trial court ought to have held
that the present appellant had purchased 1 R land/
plot from Namdeo on 31/12/1985, specifically
North-West side of Gat No.6 under the head of Gat
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No. 6/2/1. At the conclusion of ground No. VII,
it is stated by the appellant therein that:
“In Suit No. 130/2003, the boundaries are
going to correct as per amendment
application.”
. My attention is also invited to ground No.
XVI of the Memo of Appeal in Regular Civil Appeal
No. 35 of 2004 wherein statements have been made
regarding alleged conspiracy in between Namdeo and
Karbhari (brothers
ig who were erstwhile owner of
entire land Gat No. 6).
9. Mr. Dixit, learned counsel fairly concedes
that during pendency of Regular Civil Suit No.
129 of 2003, trial court was not moved by filing
application that Regular Civil Suit filed by the
defendant is pending in the same court and said
Suit to be heard along with Regular Civil Suit No.
129 of 2003. It is not in dispute that Regular
Civil Suit indisputably was filed on 31/5/2003 and
has been disposed of / decided by the trial court
on 5/4/2004. In the premise of these indisputable
facts, now I will proceed to consider the
submission and point/ ground No. (ii) regarding
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remand of the matter.
10. Apart from other submissions, Mr. Dixit,
learned counsel for the appellant has also urged
before me, to resort to Section 151 of the Code of
Civil Procedure for remand of the matter i.e.
Regular Civil Suit No. 129 of 2003. He has also
addressed the Court on Section 105 of the Code.
It is well settled in law that powers under
Section 151 of the Code are not separate or
codified powers vested with the Courts. Powers
vested
with the Civil Court are recognized under
Section 151 of the Code. This is because, in
certain circumstances there may not be a provision
under the provisions of the Code of Civil
Procedure, for the party concerned. In the
absence of the statutory provision, i.e.
provisions under the Code of Civil Procedure and
in the interest of justice, Court can resort to
Section 151 of the Code. I am considering the
submission or point regarding remand of the case
from the Appellate Court i.e. High Court hearing
the Appeal under Section 100 of the Code of Civil
Procedure. Look to the Code of Civil Procedure
makes it clear that Order 41 Rule 23 provides for
remand of the case. It is provided, that where
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the Court from whose decree any appeal is
preferred has disposed of the suit upon a
preliminary point and the decree is reversed in
appeal, the Appellate Court may, if it thinks fit,
by order remand the case, and may further direct
what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment
and order to the Court from whose decree the
appeal is preferred, with directions to re-admit
the suit under its original number in the register
of civil suits, and proceed to determine the suit;
and the evidence
ig (if any) recorded during the
original trial shall, subject all just exceptions.
This power is thus, vested with the Appellate
Court. Under this provision, it is important that
Suit must have been disposed of upon preliminary
point by the Court at the first instance i.e.
ordinarily the trial court. Another important
ingredient is reversal of decree in Appeal,
obviously by the Appellate Court and in such
contingency, Appellate Court, if thinks fit, by
order, remand the case. In the case on hand, such
exercise of power was not resorted to by the First
Appellate Court when the First Appeal under
Section 96 read with Order 41 of the Code was
pending. Now this provision still can be
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considered by this Court since High Court is also
the Appellate Court, though has to consider the
Second Appeal within the parameters of Section 100
of the Code. In the case on hand, I have not
arrived at a conclusion that the decree passed
either by the trial court or by the First
Appellate Court is to be reversed by this Court.
Considering the fact situation obtaining in the
case on hand, in my view, no case for remand under
Order 41 Rule 23 of the Code is established.
11. Remand is also provided under Order 41 Rule
23 A of the Code. Here it is provided, where the
Court from whose decree an appeal is preferred has
disposed of the case otherwise than on a
preliminary point, and the decree is reversed in
appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it
has under rule 23. It is made clear that in this
Order 41 Rule 23 A of the Code, disposal of the
Suit by the trial court is not upon preliminary
point but is otherwise than on a preliminary
point. However, I am not reversing the Judgment
and decree of the First Appellate Court, neither I
am inclined to direct retrial.
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12. While recording findings on this submission
or point, I have also considered provisions laid
down under Section 99 of the Code. It is provided
under Section 99 of the Code that no decree to be
reversed or modified on account of any error,
defect or irregularity not affecting merits or
jurisdiction. It is further provided under
Section 99 of the Code that no decree shall be
reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any
misjoinder
(or non-joinder) of parties or causes
of action or any error, defect or irregularity in
any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the
Court. I have perused the Judgments of the trial
court as well as First Appellate Court in-extenso.
Both the Courts below have considered the
voluminous oral as well as documentary evidence on
record. Both the courts are concurring on the
point that the vendor of the defendant/ appellant
is not examined. The trial court has recorded a
finding that the property which is alleged to have
been purchased by the plaintiff, is sufficiently
identified/ described and document of title/
transfer of property is on record. Location,
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boundaries and description of the property in the
opinion of the Courts below, which is subject
matter of Regular Civil Suit No.129 of 2003 and
130 of 2003 are different. So far as remand of
the case is concerned, it cannot be ordered on any
ground. It is also not submitted by parties to
the Appeal that the Civil Court who has decided
Regular Civil Suit No.129 of 2003 was not having
jurisdiction to decide the Suit at the relevant
time. Therefore, there is no case for remand of
the matter even on the ground of jurisdiction.
13. Remand of the matter on the ground of any
defect or irregularity has also been considered by
me. While trying Regular Civil Suit No. 129 of
2003 if Regular Civil Suit No. 130 of 2003 filed
by the defendant was pending, it was the bounden
duty of the litigant i.e. defendant to move the
Court specifically for hearing of the said Suit
along with Regular Civil Suit No. 129 of 2003.
Mentioning the pendency of Regular Civil Suit No.
130 of 2003 in the written statement in para A-14,
in my view, is callous approach of the defendant.
It appears that the defendant was under the
impression that just he has to point out or plead
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pendency of Regular Civil Suit No. 130 of 2003
and then it was for the Court to pass further
orders. It is not possible to approve such
conduct of the litigant in a Civil Court, in the
facts and circumstances available in the case on
hand. In a civil proceedings conduct of the
litigant always needs to be considered from the
view point of the other party or prejudice which
is likely to be caused to the other party. In the
case on hand if plaintiff approached to the Civil
Court by filing Regular Civil Suit No. 129 of
2003,
it is the duty of the Court to consider the
grievance raised in accordance with the procedure
and provisions of the law. Only because defendant
has filed Suit and pointed out in the written
statement, the Court is not expected to keep the
Suit of the plaintiff without hearing. In my
view, therefore, such pleadings of few lines in
para A-14, cannot be now resorted to by the
defendant seeking remand.
14. Another important aspect is that Section 99
appears in the Code at earlier point of time.
Objective seems to be a caution to the Appellate
Courts. It is because, Appellate Court only can
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order remand of the case. This Section 99 of the
Code, therefore, gives caution to the Appellate
Court and specifies the grounds under which remand
can be ordered by them. Lis pending in the Civil
Court must be adjudicated upon by the Court within
the reasonable time. From this view point, Code
of Civil Procedure has suffered many amendments
(Act No.46 of 1999 and Act No. 22 of 2002). Thus
provisions laid down under Order 41 Rule 23, 23 A,
have to be read and considered in the facts and
circumstances obtaining in the case and read with
Section 99 of the Code.
ig If these three provisions
and fact situation available in the case on hand
is considered, in my view, remand cannot be
ordered in the case on hand.
15. Mr. Dixit, learned counsel, as noted in
foregoing paragraphs, has resorted to Section 151
of the Code. Since two provisions have been
quoted for remand i.e. Order 41 Rule 23 and Rule
23 A, in my view, it is not a case wherein
inherent power can be exercised for remand.
16. Pendency of Regular Civil Suit No. 130 of
2003 i.e. Suit filed by the appellant/ defendant
is not in dispute. I am told by Mr. Shinde,
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learned counsel, on instructions, that Regular
Civil Suit No. 130 of 2003 is still pending in
the trial court.
17. For the reasons, in my view, this Second
Appeal cannot be allowed on Ground No. (i) and
(ii).
18. Except these two grounds, no other ground
is urged before me. This Second Appeal,
therefore, being devoid of merit needs to be
dismissed.
. The trial court seized with hearing of
Regular Civil Suit No. 130 of 2003 to decide and
dispose of the Suit by the end of this year i.e.
on or before 31/12/2008. Parties to co-operate
for early hearing. No costs.
19. Mr. Shinde, learned counsel for the
respondents, fairly concedes that when the Civil
Application No.9720 of 2005 was taken up for
hearing, order is passed by this Court on
19/1/2006. Execution filed by the respondent
decree holder is pending in the Executing Court.
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The stage was putting the Judgment Debtor in civil
prison for non compliance of the decree. Mr.
Dixit, learned counsel seeks eight weeks time.
Mr. Shinde, learned counsel submits that no case
for suspension of the order is made out.
Considering the submissions in my view, eight
weeks time can be granted. Order passed by this
Court in Second Appeal today, shall stand
suspended for eight weeks, meaning thereby decree
passed by the trial court in Regular Civil Suit
No. 129 of 2003 shall stand suspended for eight
weeks.
. In view of the disposal of the Second
Appeal, nothing survives in the Civil Application
and therefore Civil Application is also disposed
of.
. Certified copy is expedited.
[S.B. DESHMUKH]
JUDGE.
asb/u/sa1498.05
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