High Court

Legal Reasoning

1 ao 35.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 35 OF 2023Sopan Sahebrao Patil.. plaintiffVersusSopan Pandharinath Patil.. defendantShri Milind M. Patil, Advocate for the plaintiff.Shri Ajit M. Gholap, Advocate for the defendant.CORAM :SHAILESH P. BRAHME, J. DATE :19TH SEPTEMBER, 2025.FINAL ORDER :.Heard both sides.2.An order of remand passed on 20.08.2022 in R.C.A. No. 100of 2016 is questioned by the plaintiff who is successful in R.C.S.No. 30 of 2012. Respondent is original defendant. Parties arereferred as per their original status in the suit.3.Defendant is the owner of gut No. 151, out of which 40Rwas proposed to be alienated to the plaintiff. An agreement wasexecuted between them on 29.12.2008, which was registered alsofor the consideration of Rs. 1,70,000/-. As an earnest Rs.1,05,000/- was paid by the plaintiff. The balance was agreed tobe paid at the time of execution of sale deed. The possession wasagreed to be handed over at the same time. It is contended by 2 ao 35.23the plaintiff that defendant refused to perform his part ofcontract, despite receiving notice dated 03.11.2009. R.C.S. No.30 of 2012 was filed for specific performance of contract,injunction and in the alternatively for refund of earnest amount.4.Defendant contested the suit by filing written statement.He denied agreement to sale and payment of earnest amount.Additionally it is pleaded that plaintiff was having dealership ofSonalika Tractor and defendant had purchased a tractor. Hewas given assurance of discount of Rs. 40,000/-. No suchdiscount was given. Plaintiff obtained the signatures of thedefendant on blank papers under the pretext of procuring theloan. He fraudulently got executed agreement.5.Defendant was being represented by a lawyer in the trialCourt.6.Plaintiff examined two witnesses, who were crossexamined by the lawyer of the defendant. Thereafter no evidencewas adduced by the defendant. The Trial Court decreed the suitby judgment dated 03.10.2015 granting relief of specificperformance of contract. Being aggrieved, defendant preferredR.C.A. No. 100 of 2016. It was contended in appeal that noopportunity was given to the defendant. He was not aware offoreclosure of the evidence. His lawyer abruptly retired from thematter without any intimation. A separate application U/O XLIRule 27 of the Code of Civil Procedure (for the sake of brevity and 3 ao 35.23convenience hereinafter referred as to the “C.P.C.”) was filed.7.By the impugned judgment and order, appeal was partlyallowed and the matter was relegated to the Trial Court byquashing judgment and decree passed by the Trial Court for trialafresh. Being aggrieved present appeal from order is preferred.8.Learned counsel Mr. Patil for the appellant - plaintiffcanvassed substantial questions of law that the order of remandis perverse because no specific defence was raised by thedefendant and no evidence was adduced. It is submitted that onthe basis of pursis Exhibit 44, the evidence of the defendant wasforeclosed. There are lapses on the part of the defendant. It isfurther submitted that there was no need for remand consideringthe written statement. No case was made out for considering theadditional evidence, which is not supported by the pleadings inthe written statement. It is further submitted that order ofremand is an abuse of process of law and an empty formality.9.Per contra, Mr. Gholap for the respondent - defendantsubmits that the judgment passed by the Trial Court is againstthe principles of natural justice, which is properly appreciated bythe lower Appellate Court. It is submitted that considering thesequence of events without intimating the client the lawyerproceeded to get himself discharged on very first date of leadingevidence by the defendant. On 29.08.2015 the evidence wasforeclosed by the Trial Court, which is patent illegality. It is 4 ao 35.23further submitted that if an opportunity is given the defendant isready to adduce the evidence. Reliance is placed on Rule 53 ofChapter VI of the Bombay Regulation Act.10.Having considered rival submissions of the parties itreveals that defendant’s evidence was foreclosed and in theabsence of his evidence trial Court decreed the suit. Afterdischarge of his lawyer on 29.08.2015, the defendant was notrepresented by any other lawyer. The suit was decreed on03.10.2015.11.Following dates and events are very relevant.Sr. No.DatesEvents01.21.03.2014Issues were settled by the Trial Court.02.23.06.2014Exhibit 37 a pursis showing notice sent tothe defendant and acknowledgment.03.16.08.2014Affidavit in lieu of examination in chief ofplaintiff.04.13.11.2014Cross examination of the plaintiff wasconducted by the lawyer.05.10.03.2025Affidavit of examination in chief of thewitness Yuvraj.06.04.04.2015Cross examination by the advocate of thedefendant.07.29.08.2015Suit posted for defence witness.08.29.08.2015Exhibit 44 retirement pursis filed by theadvocate of the defendant.09.29.08.2015Order foreclosing the evidence of thedefendant.10.03.10.2015Judgment by the Trial Court. 5 ao 35.2312.The lawyer representing the defendant had sent notice tothe defendant, which was produced on record at Exhibit 37 alongwith acknowledgment. But thereafter cross examination of thefirst and second witnesses of the plaintiff was conducted by selfsame lawyer on 13.11.2014 and 04.04.2015 respectively. HenceExhibit 37 became redundant. Till the evidence of the plaintiffwas underway, defendant was being represented by lawyer.13.After completion of evidence of the plaintiff, 29.08.2015was the first date when the matter was posted for leading oralevidence of the defendant. Though Exhibit 44 retirement pursiswas presented, it was not disclosed that any intimation wasgiven by the lawyer to the defendant. Without ascertaining suchan intimation Trial Court proceeded to discharge the lawyer. Itwas impermissible for a pleader to withdraw himself without theconsent of the client. The procedure undertaken in the presentmatter is clearly against Rule 53 of the Bombay Regulation Act,which is as follows :The Bombay Regulation1.…….2.…….53.First.Half fees :[Repealed by Act No. XII of 1873]Second. Several Pleaders may be engagedbut without prejudice to opposite party :…….. 6 ao 35.23Third.Client may withdraw hisvakalatnama but pleader not to withdrawwithout his consent or order of Court :It shall be competent to a party at anytime to withdraw the authority vested in a pleader toact in his behalf, on giving the Court notice in writingto that effect; but it shall not be competent to a pleaderto withdraw from acting in behalf of his client withouthis consent or the special permission of the Court.14.I have gone through order dated 29.08.2015 passed belowExhibit 01 of the plaint, which is as follows :ODeft. Absent when called out repeatedly. Adv. For deft.Present & filed pursis below Exh. 44 that deft.Remained absent since long & not giving anyinstruction. The conduct of deft. Shows that he is notinterested, hence evidence of deft. Closed.15.Surprisingly, on very first day when matter was for thefirst time posted for evidence of the defendant, the orderforeclosing the evidence was passed, which is a blatant violationof principles of natural justice. The defendant had no occasion toknow that his lawyer had retired and his evidence wasforeclosed. The learned Trial Judge proceeded in arbitrarymanner. In the impugned judgment, lower Appellate Court hasrightly taken into account the procedure adopted by the TrialCourt in holding that no opportunity was given to the defendant.I concur with the finding that judgment of the Trial Court is inutter violation of principles of natural justice and unsustainable. 7 ao 35.2316.Once it is concluded that defendant was not givenopportunity to lead the evidence, there is no alternative than toremand the matter to the Trial Court. The submission of thelearned counsel for the plaintiff that no defence is available tothe defendant and there is no point in remanding the matter tothe Trial Court is misplaced. It cannot be appreciated at thisjuncture as to whether defendant has any defence available ornot. After extending opportunity of hearing it would be open forthe plaintiff to agitate before the Trial Court in that regard andthen the Trial Court would decide the issue. I find merit in thesubmissions of the learned counsel for the defendant that matteris rightly relegated to the Trial Court.17.It is not brought to my notice that application Exhibit 39filed U/O XLI Rule 27 of the C. P. C. was decided either way. AsI am confirming the order of remand, it is not necessary toexamine application Exhibit 39 and the documents annexedalong with it. The defendant would be at liberty to adduce theevidence and, therefore, application Exhibit 39 has becomeredundant.18.It is brought to my notice that decree passed by the TrialCourt was almost executed and only handing over of possessionis remaining. The defendant has deposited an amount of Rs.19,770/- on 06.09.2022 in pursuance of stamp duty andregistration charges as per the impugned judgment. I propose to 8 ao 35.23permit the plaintiff to withdraw the amount as cost imposed onthe defendant.19.For the foregoing reasons I pass following order :O R D E RA.Appeal from order is dismissed thereby confirming thejudgment and order dated 20.08.2022 passed in R.C.A. NO. 100of 2016.B.The amount of Rs. 19,770/- (Rs. Nineteen thousands Sevenhundred Seventy only) deposited by the defendant shall be paidto the plaintiff with accrued interest.C.Parties shall appear before the Trial Court on 06.10.2025.D.The Trial Court shall decide the suit by extendingopportunity of hearing to the parties as expeditiously as possibleand preferably within a period of six (06) months thereafter.E.Application Exhibit 39 filed U/O XLI Rule 27 of the C. P. C.is declared to be redundant. [ SHAILESH P. BRAHME J. ] bsb/Sept. 25