High Court
Legal Reasoning
AO 29 25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 29 OF 2025WITHCIVIL APPLICATION NO. 10459 OF 2024 IN AO/29/2025WITHCIVIL APPLICATION NO. 9497 OF 2025 IN AO/29/20251)Sarlabai w/o Bhagchand BhawarAge 51 years, Occ. Household.2)Kiran d/o Bhagchand Bhawar,Age 30 years, Occ. Household.3)Ganesh s/o Bhagchand Bhawar,Age 24 years, Occ. Student.4)Rani d/o Bhagchand Bhawar,Age 20 years, Occ. Student,All r/o. Aurangpurwadi, Tq. Paithan,Dist. Chhatrapati Sambhajinagar…Appellants (Orig. Plff/Resp. No. 1 to 4 in RCA)VERSUS1)Bhagchand s/o Kadu Bhawar,Age 56 years, Occ. Agriculture,… Orig. Deft. no.1.R/o Aurangpurwadi, Tq. Paithan,Dist. Chhatrapati Sambhajinagar 2)Bapurao s/o Kadu Bhawar,… Orig. Deft. No. 2.Age 61 years, occ.Agriculture,R/o. Taherpur, Tq. Paithan, Dist.Chhatrapati Sambhajinagar3)Kalyan s/o Kadu Bhawar,…Orig.deft. No. 3Age 66 years, Occ. Service,R/o. Vitthalnagar Galli, Ramnagar, Tq. & Dist. Chhatrapati Sambhajinagar…Respondents …Advocate for Appellants : Mr. C.K. Shinde.Advocate for Respondent no. 3 : Mr. A.P. Ghule-Patil1/7 AO 29 25.odtCORAM: SHAILESH P. BRAHME, J.RESERVED ON PRONOUNCED ON:: 29.09.2025 03.10.2025PER COURT : Heard both sides finally. The substantial questions of law wereframed and it was indicated that matter shall be decided finally at theadmission stage vide my earlier order dated 11.08.2025. Parties are awareof the substantial questions of law and accordingly they agreed to work outthe matter.2.Appeal is directed against order of remand dated 03.01.2024 passedby District Judge-4 Aurangabad in Regular Civil Appeal No. 141/2021. Theappellants are original plaintiffs and respondents are original defendants.The respondent no. 3 Kalyan Kadu Bhawar was unable to cross-examine thewitnesses and adduce his evidence weighed with Lower Appellate Court toremand the matter for extending an opportunity to him.3.The appellants had filed Regular Civil Suit No. 210/2008 for partitionand possession. The relationship is not disputed by the parties. The subjectmatter was 55-Are land from Gat No. 105. It is stated to be undivided jointHindu family property. Respondent no. 1 Bhagchand is the husband ofappellant no. 1 and father of appellant nos. 2 to 4, who was allotted suitland in partition of 1988. It is contended that respondent no. 1 Bhagchandwas addicted to vices and without there being any legal necessity sold partof the suit land to respondent no. 2 Bapurao, his brother by different sale-deeds. Respondent no. 3 Kalyan is said to have purchased 42-Are fromrespondent no. 2 on 26.05.2001. Respondent no. 2 is said to havereconveyed 12-Are to respondent no. 1. The alienations are said to havebeen bad in law. Hence reliefs of partition and possession are sought.4.Respondent nos. 1 and 2 did not appear before the Trial Court. No2/7
Legal Reasoning
AO 29 25.odtwritten statement was filed by them. The suit proceeded ex parte againstthem. Respondent no. 3 Kalyan appeared and filed written statement butdid not cross-examine the plaintiffs’ witness. He also did not lead anyevidence. Considering the oral evidence of the plaintiff and the documentaryevidence the suit was decreed partly vide judgment dated 19.07.2013,awarding 1/5th share each to the appellants as well as respondent no. 1.The sale-deeds are declared to be not binding on the plaintiffs. Beingaggrieved, only respondent no. 3 filed Regular Civil Appeal No. 141/2021,in which impugned order of remand was passed. 5.Learned counsel Mr. Shinde for the appellant submits that respondentno. 3 had ample opportunity to participate in the proceeding and to leadevidence but he remained absent without assigning any convincing reasons.It is submitted that sympathy shown by the Lower Appellate Court forgranting opportunity to respondent no. 3 is misplaced, which is perversity.It is further submitted that respondent no. 3 had filed an application underOrder IX Rule 13 of the Code of Civil Procedure (CPC) but it was rejected bythe Trial Court. Then he had preferred Miscellaneous Appeal before theLower Appellate Court, which was withdrawn by him. In this backdrop,reliance is placed on the judgment of the Supreme Court in the case ofBhanu Kumar Jain Vs. Archana Kumar and another; (2005) 1 SupremeCourt Cases 787 to contend that Lower Appellate Court committed patentillegality in remanding the matter. It is further submitted that respondentno. 3 did not raise any ground before the Lower Appellate Court as to whatprevented him in participating in the proceedings and he was beingrepresented by a lawyer. Lastly, it is submitted that adequate opportunitywas given to respondent no. 3 and he was consistently absent and casuallythe suit is remitted to the Trial Court, which is flagrant error of jurisdiction. 6.Per contra, learned counsel for the respondents submits thatimpugned order is equitable one granting opportunity to both the sides,hence, no prejudice can be said to have been caused to the appellants. The3/7 AO 29 25.odtappellant no. 1 was witness to the sale-deeds. It is submitted that the decreehas been executed and appellants have been handed over possession of54-Are land. It is further submitted that respondent no. 3 has beensufficiently punished by imposing costs by the Lower Appellate Court whilecondoning delay as well as by the impugned order. Respondent no. 3 wasbeing given wrong advice. Due to his indisposition he could not participatein the suit. It is submitted that order of remand needs to be confirmed. 7.Having considered the rival submissions of the parties and havinggone through the paper book placed on record by the appellants, it isevident that respondent no. 3 filed written statement in the suit. He wasbeing represented by a lawyer. Roznama shows that from 18.11.2008constantly respondent no. 3 and his lawyer remained absent. Already thesuit had proceeded ex parte against respondent nos. 1 and 2. It wasproceeded ex parte against respondent no. 3 also. He did not conduct cross-examination of the plaintiffs’ witness. Neither any evidence was led by him. 8.Respondent no. 3 had filed MARJI No. 63/2013 under Order IX Rule13 of the CPC. It was rejected by the Trial Court on 09.02.2017. Beingaggrieved, he preferred Misc. Civil Appeal No. 40/2017, which wasdismissed by a reasoned order on 06.09.2017. The grounds for notparticipating in the suit pressed into service by respondent no. 3 areanswered in negative by both the Courts below by distinct reasoned orders.Belatedly, Regular Civil Appeal No. 141/2021 was filed on or about07.12.2021 with application for condonation of delay. The delay wascondoned and thereafter the Lower Appellate Court passed impugned orderof remand.9. The impugned order reflects that merely to extend an opportunity torespondent no. 3, as he was unable to conduct cross-examination andadduce his evidence, the matter is relegated to the Trial Court. The LowerAppellate Court totally overlooked that respondent no. 3 failed to make out4/7 AO 29 25.odta case for not participating in the proceedings. The Roznama of the TrialCourt, order dated 09.05.2017, passed in MA( RJI) No. 63/2023 and furtherjudgment and order of the Lower Appellate Court dated 06.09.2017 in Misc.Civil Appeal No. 40/2017 are overlooked. The respondent had opportunityto participate in the proceedings and there are lapses on his part. TheLower Appellate Court has committed error of jurisdiction. 10.It is impermissible for the Lower Appellate Court to remand the entirematter to the Trial Court just because respondent no. 3 did not participate inthe proceeding. The grounds of objection in the appeal memo do not spellout the circumstances for remaining absent. This approach is casual becauseno convincing reasons are assigned by respondent no. 3. The straysubmissions of the learned counsel for the respondents that his client wasindisposed of and unable to attend for unavoidable circumstances is absurdand without any foundation. It is perversity for the Lower Appellate Courtto remand the matter, which is deprecated by the Supreme Court in thematter of Syeda Rahimunnisa vs Malan Bi (Dead) By Lrs. & Anr.; AIR 2016Supreme Court 4653.11.Respondent no. 3 was unsuccessful in M.A. (RJI) NO. 63/2013 filedunder Order IX Rule 13 of CPC. His Misc. Appeal No. 40/2017 was also metwith dismissal on merits on 06.09.2017. After having failed in earlierattempt, he approached the Lower Appellate Court under Section 96 readwith Order XLI of CPC. In this backdrop, the learned counsel Mr. Shinde hasinvited my attention to law laid down by the Apex Court in the matter ofBhanu Kumar Jain (supra). Following are the relevant extracts:“37. We have, however, no doubt in our mind that whenan application under Order 9 Rule 13 of the Code isdismissed, the defendant can only avail a remedy availablethere against viz. to prefer an appeal in terms of Order 43Rule 1 of the Code. Once such an appeal is dismissed, the5/7 AO 29 25.odtappellant cannot raise the same contention in the firstappeal. If it be held that such a contention can be raisedboth in the first appeal as also in the proceedings arisingfrom an application under Order 9 Rule 13, it may lead toconflict of decisions which is not contemplated in law.38. The dichotomy, in our opinion, can be resolved byholding that whereas the defendant would not be permittedto raise a contention as regards the correctness orotherwise of the order posting the suit for ex parte hearingby the trial court and/or existence of a sufficient case fornon-appearance of the defendant before it, it would beopen to him to argue in the first appeal filed by him underSection 96(2) of the Code on the merits of the suit so as toenable him to contend that the materials brought on recordby the plaintiffs were not sufficient for passing a decree inhis favour or the suit was otherwise not maintainable. Lackof jurisdiction of the court can also be a possible plea insuch an appeal. We, however, agree with Mr. Chaudharithat the "Explanation" appended to Order 9 Rule 13 of theCode shall receive a strict construction as was held by thisCourt in Rani Choudhurys, P. Kiran Kumar and ShyamSundar Sarma v. Pannalal Jaiswal.”12.In view of the authoritative pronouncement the impugned judgmentand order is unsustainable. Respondent no. 3 is estopped from contendingthe same grounds for not adducing evidence and participating in theproceeding, which have already been discarded by concurrent findings in hisproceedings under Order IX Rule 13 of CPC. The sympathy shown by theLower Appellate Court by observing that for granting opportunity to him,the matter needs to be relegated to the Trial Court would amount tooverreaching the findings recorded in earlier round of under Order IX Rule6/7
Decision
AO 29 25.odt13 of CPLC. In my considered view, the impugned order is flagrant abuse ofprocess of law.14.The impugned order is unsustainable. Both the substantial questionsof law are answered in negative. I, therefore, pass following order.ORDER (I)Appeal from Order is allowed. Impugned judgment and order isquashed and set aside.(II)Consequentially the proceedings undertaken by the Trial Courtafter order of remand are vitiated.(III)Regular Civil Appeal No. 141/2021 is restored and the LowerAppellate Court shall decide it on merits, on the basis of existingmaterial on record. (IV)Pending Civil Applications are disposed of. ( SHAILESH P. BRAHME, J.) mkd/-7/7