High Court
Legal Reasoning
07 AO 3 25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD7 APEAL FROM ORDER NO. 3 OF 2025WITHCIVIL APPLICATION NO. 9191 OF 2025 IN AO/3/2025MEHRUNNISA BEGUM SHAIKH RASULVERSUSTAHERA W/O SHAIKH ABDUL RASHEED AND ANOTHER...Advocate for the Petitioner : Mr. Shaikh Tarek Mobin H. Advocate for Respondent nos. 1 and 2 : Mr. Deshmukh Saud Ahemad ...CORAM: SHAILESH P. BRAHME, J.DATE: 26.09.2025PER COURT : Heard both sides finally with the consent of the parties.2.Both the counsels concede that the substantial question of lawinvolved in the appeal is as to “whether order of remand is legal and validwhen it was based upon the material, which was not placed on record byundertaking the procedure under Order XLI Rule 27 of the Code of CivilProcedure ?” It was reflected in earlier order dated 03.03.2025 that recordwas called for to examine the manner in which the order of remand waspassed by the Lower Appellate Court.3.This appeal is directed against order of remand dated 15.04.2024passed by the Lower Appellate Court in Regular Civil Appeal No. 19/2023relegating to the parties to the Trial Court for adducing oral as well asdocumentary evidence and conducting cross-examination of the witnesses.The appellant is original plaintiff. The respondents are original defendants,who were litigating in Regular Civil Suit No. 89/2025 for possession andmesne profits.1/6 07 AO 3 25.odt4.The respondents did not file written statement and filing of thewritten statement was forfeited. The appellant adduced oral evidence. Nocross-examination was conducted and right to conduct cross-examinationwas also forfeited. Attempts were made by the defendants to get the ordersreferred above set aside.By imposing costs such opportunity was also evengranted but the amounts of cost were not deposited in time and they lostthat opportunity which is reflected in order dated 14.11.2019 passed by theTrial Court below Exh. 43.5.By judgment and decree dated 03.03.2022, suit was partly decreed,directing the respondents to hand over possession within two weeks and toconduct separate enquiry for mesne profits. Being aggrieved, regular CivilAppeal No. 19/2023 was preferred before the Lower Appellate Court. In theLower Appellate Court application Exh. 4 was filed along with sixdocuments. Two documents were the impugned judgment and decree.Remaining documents were filed for the first time before the Court.Considering one of such documents, the Lower Appellate Court found thatopportunity was required to be extended to the respondents to put forththeir defence and in order to give fair opportunity the matter was remandedto the Trial Court by the impugned order.6.The learned counsel for the appellant submits that the impugnedorder is patently illegal because the additional evidence could not have beenconsidered without there being any application under Order XLI Rule 27 ofthe CPC and order to that effect. It is submitted that the Lower AppellateCourt has committed perversity by taking into account a document in Urdulanguage which was not before the court and that was extraneous. It isvehemently submitted that ‘no written statement order’ as well as ‘no-crossorders’ were not quashed and set aside and merely relegating the parties toadduce the evidence would be an empty formality. It is further submittedthat the respondents were given adequate opportunity for filing writtenstatement as well as conducting cross-examination but, repeatedly, they2/6 07 AO 3 25.odtfailed to comply the orders. My attention is adverted to order dated14.11.2019 passed below Exh. 43 by the Trial Court. It is submitted thatorder below Exh. 43 has also not been challenged by the respondents.7.Per contra, learned counsel for the respondents repels thesubmissions. By supporting the impugned order it is submitted that in orderto extend opportunity to the respondents, matter was relegated to the TrialCourt and the Trial Court would take into account documentary as well asoral evidence. It is further submitted that the Appellate Court has everyright to consider the case on merits and to remand the matter. Therefore, nofault can be found in the impugned order. It is submitted that theidentification of the suit property is a seriously disputed issue. The sale-deed, Hibanama and the plaint are inconsistent and the decree would beunexecutable. My attention is adverted to the findings recorded by theLower Appellate Court. It is submitted that if the order of remand issustained then both the parties would get the opportunity and realcontroversy can be gone into by the Trial Court.8.I have considered the rival submissions of the parties. I have gonethrough the record and proceedings, which was called for. Record revealsthat application Exh. 4 is the list of documents submitted by the respondentsin Regular Civil Appeal No. 19/2023. Along with the list in all six documentswere placed on record. Out of them first two documents are the judgmentand decree passed by the Trial Court. Remaining four documents were filedfor the first time in the Lower Appellate Court. It further reveals that nowritten statement was filed by the respondents and the order of no writtenstatement remained intact.9.Following sequence of event is very relevant :Sr. No.DateEvent1)27.07.2025No written statement order was passed against the respondents. 3/6 07 AO 3 25.odt2)05.04.2016No cross order was passed against the respondents.3)28.06.2016Application Exh. 22 to set aside no-cross order was filed. 4)Again on28.06.2016Application Exh. 22 was allowed on costs of Rs. 500/-4)11.12.2024On failure to pay costs again no cross order was passed.5)15.07.2016 Application to set aside no written statement order was filed.6)05.08.2016Application was allowed with costs.7)10.01.2018As the costs was not paid, order of no written statement was restored. 8)Application Exh. 43 was filed for depositing the costs and for permission to conduct cross-examination.9)14.11.2019Application Exh. 43 was rejected. 10.Record reveals that twice opportunity was given to the respondents topay costs and to file the written statement. Twice the respondents weregiven opportunity to pay costs and to conduct the cross-examination. Thoseopportunities have not been availed by the respondents. Even order belowExh. 43 passed on 14.11.2019 was not challenged and it became final.11.While preferring appeal, the grounds of objections were incorporated.No specific challenge was raised to order of ‘no written statement’ or orderof ‘no-cross’, albeit, a ground was raised for remanding the matter to theTrial court for filing written statement and the documents. A ground wastaken that a separate application under Order XLI Rule 27 would be filed. Ifind from record that without filing any distinct application under Order XLIrule 27 of the CPC, application Exh. 4, a list of documents was filed and fournew documents were filed for the first time in the Lower Appellate Court. Inthe absence of any application under Order XLI rule 27 of the CPC or anyspecific order of Lower Appellate Court, it was not permissible to consider4/6 07 AO 3 25.odtthe documents, which were coming for the first time before the LowerAppellate Court.12.Impugned order refers to a document in Urdu script, which wasplaced before the Court for the first time. It is a extraneous material. Suchmaterial could not have been taken by the Appellate Court. I find that theLower Appellate Court has committed a patent illegality in entertainingextraneous material and showing sympathy to the respondents in relegatingthe matter to the Trial Court.13.It is lost sight of by the Lower Appellate Court that there is no writtenstatement filed by the respondents. In the absence of any order setting asideno written statement, it was of no use to relegate the matter for adducingany evidence. Its trite law that evidence without pleading would have novalue. The conduct of the respondents, which was reflected in order dated14.11.2019 passed below Exh. 43 has also been not been taken into accountby the Lower Appellate Court. I am of the considered opinion that thefindings recorded in paragraph No. 18 is misplaced sympathy towards therespondents, who repeatedly committed defaults.14.The order of remand does not specifically reflect that the reasons fornot filing the written statement were taken into consideration and the orderforeclosing right of the respondents was examined by the Lower AppellateCourt. On the basis of extraneous material and for extending opportunity ofhearing, the order of remand was passed by the Lower Appellate Court inextremely casual manner. I find substance in the submissions made by theappellant. The impugned order is unsustainable.15.It is brought to my notice by the learned counsel for the appellant thatin pursuance of the order of remand parties appeared before the Trial Courtand even new issues were settled. Once the impugned order is held to beillegal then the consequential acts are vitiated. For the reasons stated above,I find that the substantial question of law needs to be answered in the5/6
Legal Reasoning
07 AO 3 25.odtpositive i.e. the order of remand is unsustainable and invalid.16.Appeal from order is allowed thereby quashing and setting aside thejudgment and order dated 15.04.2024 passed in Regular Civil Appeal No.19/2023. The Lower Appellate Court shall deal with the appeal on its ownmerits.17.Pending Civil Application is disposed of.18.Record and proceedings be sent back to the Lower Appellate Court.19.After pronouncement of the judgment, learned counsel for therespondents prays for stay to execution of the order passed today.20.The learned counsel for the appellant opposes the request.21.The respondents are anxious to challenge the order before the ApexCourt. However, the Trial Court is seized of the matter in Regular Civil SuitNo. 89/2015. I propose to grant breathing time to the respondents toapproach higher forum, but I am inclined to stay further proceedings ofRegular Civil Suit No. 89/2015.22.The operation of judgment and order passed today shall stand stayedfor a period of four weeks and the stay shall stand automatically vacatedwithout reference to the Court after expiration of period. Meantime theproceedings of Regular Civil Suit No. 89/2015 shall stand stayed. ( SHAILESH P. BRAHME, J.) mkd/-6/6