High Court

Legal Reasoning

1 09 sa 539.21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 539 OF 2021Venkat Narayan Valse and others.. AppellantsVersusShakuntalabai Tukaram Gatte.. RespondentShri Tukaram M. Venjane, Advocate for the Appellants.Shri Nikhilesh K. Tungar, Advocate for the Respondent.CORAM :SHAILESH P. BRAHME, J. DATE :25TH SEPTEMBER, 2025.FINAL ORDER :.Heard both sides.2.Second appeal is emanating from concurrent findings offacts in granting decree of partition and possession in favour ofthe respondent. Both the learned counsels showed readiness toaddress following substantial questions of law. (i)Whether judgments and decrees passed by both theCourts below are against the principles of natural justice for notgiving opportunity to file written statement ?(ii)Whether lower Appellate Court has properlyexercised the jurisdiction in dealing with the grounds ofobjections raised in respect of valid service of summons after 2 09 sa 539.21transfer of the proceedings from Udgir Court to Deoni Court andthat of giving opportunity to file written statement ?3.With the consent of the parties I have taken up the secondappeal for final disposal at the admission stage. Learned counselfor the respondent has already placed on record the documents ofthe Trial Court in respect of bailiff report, appearance pursis ofthe appellant No. 3 and vakalatnama of the appellant No. 3.4.Respondent had filed R.C.S. No. 59 of 2009 in the CivilCourt at Udgir for partition and possession. In pursuance of thesummons appellants caused appearance by engaging a lawyer.No written statement was filed within the time despite extendingopportunities to them. No written statement order was passedagainst them. That was set aside by imposing cost of Rs. 500/-.As no steps were taken for paying cost, matter proceeded withouttheir written statement. No evidence was adduced by them.5.In the mean time proceedings from the Udgir Court weretransferred to Deoni Court on 25.11.2009. Summons were issuedto the appellants separately by the Deoni Court. It was reportedthat summons was duly served on the appellant No. 3. Theybeing members of the family and real brothers, the summons ofthe appellant No. 1 and 2 were also reported to be accepted bythe appellant No. 3. Report to that effect was prepared andsubmitted before the Trial Court. The suit was decreed partly. 3 09 sa 539.216.Being aggrieved by the decree, R.C.A. No. 08 of 2014 waspreferred by the appellants. Specific grounds of objections wereraised that they had paid the cost imposed while setting aside nowritten statement order to their lawyer, who failed to deposit itin the Court and a ground that there was no valid service ofsummons after transfer of matter to Deoni Court and they werenot heard.7.Learned counsel Mr. Venjane for the appellants submitsthat the lower Appellate Court committed patent error ofjurisdiction in not dealing with the specific grounds of objections,which pertained to the procedure and violation of principles ofnatural justice. The lower Appellate Court pronounced judgmenton the merits of the matter. It is submitted that when recordwas available and specific grounds were raised, it was thestatutory duty of the learned Judge to record findings either wayin the impugned judgment. It is submitted that the approach ofboth the Courts below is against the principles of natural justice.The appellants have valid defence and material to contest thesuit. The substantial questions of law need to be answered in theaffirmative.8.Learned counsel Mr. Tungar appearing for the respondentrepels the submissions. He would submit that there was validservice of summons in view of Order V Rule 15 of the Code ofCivil Procedure. He adverted my attention to the documentsproduced before this Court namely pursis, bailiff report, 4 09 sa 539.21panchanama conducted, appearance of the appellant No. 3 -Ankush, etc. It is submitted that appellants were aware of theproceedings and deliberately they remained absent. He wouldfurther submit that the ground for not filing written statement isunsustainable and not supported by any evidence. He wouldfurther submit that this Court can look into valid service ofsummons instead of remanding the matter.9.I have considered rival submissions of the parties.Admittedly, no written statement was filed by the appellants. Inthe absence of the pleadings and evidence of the appellants suitwas decreed. Before the lower Appellate Court specific groundswere taken by the appellants in respect of forfeiture of right tofile written statement as well as valid service of summons aftertransfer of the matter. Impugned judgment does not reflect anyapplication of mind. A vital aspect is lost sight of. 10.Initially suit was filed at Udgir Court. Thereafter on25.11.2009 it was transferred to the Deoni Court. After transfersummons were issued to the appellants. Out of them, appellantNo. 3 - Ankush appeared in the suit by engaging a lawyer.Appellant Nos. 1 and 2 did not cause their appearance and bailiffreport was pressed into service to show that they were servedthrough their real brother i. e. appellant No. 3. All theappellants were recorded to be duly served by the Trial Court.When Appellate Court decided the matter the record of the TrialCourt was called for and thereafter the matter was dealt with 5 09 sa 539.21and finally decided by the impugned judgment and decree.11.The bailiff report, panchanama, appearance pursis andvakalatnama were before the lower Appellate Court. Appellantshad taken specific ground in their appeal memo. It was theforemost duty of the lower Appellate Court while exercisingjurisdiction U/Sec. 96 of the Code of Civil Procedure to deal withall aspects of the matter. The grievance of the appellants beforethe lower Appellate Court was going to the root of the matter,which was totally ignored. It is only cursorily recorded in paraNo. 7 of the impugned judgment that summons were duly servedupon the appellants and they failed to file written statement andmatter proceeded without their written statement. Thejudgment referred by lowered Appellate Court does not spell outany consideration for the grounds raised regarding not filing ofthe written statement. It is abdication of judicial duty, whichcannot be countenanced. I am of the considered view that thelower Appellate Court failed to exercise jurisdiction vested in itand it's judgment is unsustainable.12.It is a suit for partition. The parties are litigating for quitesome time. Even if matter is relegated to the lower AppellateCourt only, the lower Appellate Court will have to deal with thequestion of valid service of summons as well as the order of nowritten statement by the Trial Court. To avoid furthercomplications and to save the time, I find it fit to relegate theparties to the Trial Court by extending opportunity to them to 6 09 sa 539.21file pleadings and lead evidence within stipulated period.13.At the same time I cannot be oblivious of the fact thatappellants are in possession of the agricultural land gut No. 26as well as house No. 26/1. The respondent is their cousin sister,who is litigating for her rights since the year 1999. I thereforepropose to impose cost of Rs. 1,00,000/- (Rs. One Lakh only),which would be condition precedent. 14.For the reasons stated above, I answer first substantialquestions of law in affirmative and second substantial questionin negative. I therefore pass following order.O R D E RA.Second appeal is allowed partly.B.Impugned judgment and decree dated 18.04.2018 passedby the lower Appellate Court in R.C.A. No. 08 of 2014 andjudgment and decree dated 06.08.2011 passed by the Trial Courtin R.C.S. No. 59 of 2009 are quashed and set aside.C.Matter is relegated to the Civil Judge Junior Division,Deoni for trying it afresh from the stage of filing of writtenstatement.D.Parties shall appear before the Trial Court on 16.10.2025and no further summons or notice shall be issued to them. It ismade clear that appellants shall appear before the Trial Court 7 09 sa 539.21along with written statement and no further extension shall begranted. E.The parties shall not seek unnecessary adjournments andthe Trial Court shall decide the matter as early as possible andin any case within a period of five (05) months from the date ofappearance of the parties i. e. 16.10.2025.F.Appellants shall pay cost of Rs. 1,00,000/- (Rs. One Lakhonly) to the respondent within a period of four (04) weeks fromtoday, which is condition precedent. Failure of which shall entailtermination of the present order and impugned judgments anddecrees shall be restored without reference to this Court.G.Needless to state that this Court has not expressed anyopinion on the merits of the matter.[ SHAILESH P. BRAHME J. ] bsb/Sept. 25