High Court · 2025
Legal Reasoning
1 942.SA No.564-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO. 564 OF 2023WITH CIVIL APPLICATION NO. 8685 OF 2018ANDCIVIL APPLICATION NO. 7233 OF 20191. Ashok s/o Jandeo HambardeAge: 77 yrs. Occu. Agri.2. Ayodhyabai w/o Ashok HambardeAge: 71 yrs. Occu. HouseholdBoth R/o. Ashti, Tq. Ashti Dist. Beed....AppellantsVERSUS1) Dilip s/o Jandeo HambardeAge: 44 yrs. Occu. Agri.2) Mamtabai w/o. Jandeo HambardeAge: 71 yrs. Occu. Agri.3) Suvarna w/o. Dilip HambardeAge: 39 yrs. Occu. HouseholdResp. No. 1 to 3 R/o. Ashti, Tq. Ashti, Dist. Beed.4) Suman w/o. Nagnath ShindeAge: 54 yrs. Occu. Household R/o. Chikhali, Tq. Ashti Dist. Beed.5) Usha w/o. Dattatraya Shinde Age: 50 yrs. Occu. Household R/o. Chikhali, Tq. Ashti Dist. Beed. 2 942.SA No.564-2023.doc 6)Sushilabai w/o. Digambar Jagtap Died through L.Rs.:6(A) Digvijay s/o. Digambar Jagtap Age: 38 yrs. Occu. Service R/o. Tawalwadi, Jamgaon Post Tq. Ashti, Dist. Beed.6(B) Dilip s/o. Digambar Jagtap Age: 35 yrs. Occu. Service R/o. Tawalwadi, Jamgaon Post Tq. Ashti, Dist. Beed. ...Respondents ******Advocate for Appellants : Mr. V.D. SalunkeAdvocate for Respondent No. 1 : Mr. H.V. TungarAdvocate for Respondent Nos. 4 and 5 : Mr. N.L. JadhavAdvocate for Respondent Nos. 6-A and 6-B : Mr. A.Y. Pandule****** CORAM : SHAILESH P. BRAHME, J. CLOSED FOR JUDGMENT ON : 23rd JULY 2025 JUDGMENT PRONOUNCED ON : 29th JULY 2025J U D G M E N T :1.Being aggrieved by judgment and decree dated 23.06.2017passed by Learned District Judge, Beed in R.C.A No.123 of 2010confirming the judgment and decree dated 18.06.2010 passed byLearned Civil Judge Senior Division, Ashti in R.C.S No.244 of 2006,present second appeal is filed by original defendant Nos.2 and 4. 3 942.SA No.564-2023.doc 2.Respondent No.1 is the original-plaintiff who had filed suit forpartition and separate possession in respect of various propertiesmentioned in the plaint. His suit proceeded ex-parte against presentappellants as well as other defendants. In the absence of any writtenstatement, oral evidence of plaintiff himself was led. He produced fewdocuments. Trial court decreed the suit partly awarding 1/6th share toplaintiff, his mother/defendant No.3 and siblings. Further directionswere issued to refer the matter for effecting partition by metes andbounds. 3.Being aggrieved present appellants preferred Regular CivilAppeal No.123 of 2010. Lower appellate court dismissed it on23.06.2017. Pertinently appellants did not resort to Order 9 Rule 13 ofC.P.C against ex-parte judgment passed by the trial court. 4.In the trial court when the appellants and other defendants didnot cause appearance, suit was directed to proceed ex-parte videorder dated 17.03.2007. Appellants had preferred application Exhibit-45 to set-aside order to proceed ex-parte against them. It wasrejected by order dated 04.08.2009. It was not challenged before anyforum. On this premise, present appeal has been argued pointing outsubstantial questions of law.
Legal Reasoning
4 942.SA No.564-2023.doc 5.Learned counsel for the appellants submits that there are eightsubstantial questions of law which are tendered on record separately.In pursuance of that submissions are canvassed. The judgment of thetrial court is void because no issues were framed. So also thejudgment and decree passed by lower appellate court framing onlythree points is argued to be against Order 41 Rule 31 of C.P.C. Nopoints for involving facts in issue are formulated, though grounds ofappeal memo discloses various pleas raised by the appellants. It issubmitted that self-acquired properties of the appellants i.e Sy. No.36and Sy. No.605/1/B were included in common hotchpot. Withoutextending any opportunity, decree of partition is passed. It is furthercontended that there were contentious issues involved in the matterwhich were agitated by the appellants before lower appellate court inground Nos.1 to 7, which were simply overlooked and only submissionof remand was considered. It is further submitted that when suit wasdismissed for default against defendant No.6 vide order dated18.07.2007, entire suit ought to have been dismissed or ought to havebeen abated against remaining defendants also. 6.Learned counsel Mr. Salunke for the appellants submits thatlower appellate court committed patent illegality in relying on thejudgment of Nagpur Bench. It is submitted that the observations in 5 942.SA No.564-2023.doc paragraph No.11 that appellants did not apply for review or file anyapplication for setting aside ex-parte decree is perverse becauseapplication Exhibit-45 was filed and it was rejected. Both the courtsbelow failed to appreciate that there were talks of settlement andappellants were under bona-fide impression that the suit was likely tobe settled which prevented them from filing written statement orcontesting the suit. It was a fit case to remand the matter forextending opportunity to the appellants. It is submitted thatRespondent No.1 did not lead any evidence to show that suitproperties are joint family properties. In the absence of any material,no decree could have been passed in his favour. It is furthercontended that in the second appeal, Respondent No.1 has filed CivilApplication No.7233 of 2019 for bringing couple of properties incommon hotchpot and thereby seeking amendment to the plaint whichis indicative of the fact that suit filed was for partial partition or allproperties were not brought in common hotchpot. 7.Per contra, learned counsel Mr. Tungar for Respondent No.1repels submissions on the ground that appellants were givenadequate opportunity after service of summons and they remainedabsent and hence suit proceeded ex-parte. Neither order dated17.03.2007 passed by the trial court was challenged nor order dated 6 942.SA No.564-2023.doc 04.08.2019 below Exhibit-45 was challenged before any forum. It isvehemently contended that both the courts below have rightly passedthe judgment and considered necessary pleadings and material onrecord. The manner in which points for determination are framedwould not vitiate the judgment. It is submitted that the judgment of thetrial court is not vitiated for want of framing of issues in view of Order8 Rule 10 of C.P.C. Learned counsel Mr. Tungar has clarified in CivilApplication No.7233/2019 that father of the siblings Jandeo died on02.12.2007 and Two lands bearing Sy.No.36 and Sy.No.712 exclusivelypurchased by him merged into joint family property. Jandeo diedintestate and his properties culminated into joint family. He seeks torely on following judgments. i) The Gujarat Maritime Board vs. G.C.Pandya reported in 2015 ALL SCR 2257.ii) Smt.Shobha Suresh Kurekar vs. Mohan Suresh Kurekar reported in 2017(4) ALL MR 21iii)Tertuliano Renato de Silva and Anr.Vs. Francisco Lourenco Betterncourt de Silva, reported in 2019(1) ALL MR 86.8.I have considered rival submissions of the parties. With theassistance of the lawyers I have gone through both judgments andthe substantial questions of law pressed into service by theappellants. Learned counsel Mr. Salunke does not press into servicesubstantial questions of law during his arguments pertaining to 7 942.SA No.564-2023.doc dismissal of the suit for default as against defendant No.6 when it ispointed out that order of dismissal dated 18.07.2007 was later onrecalled vide order dated 21.08.2009. During the course of arguments,parties have placed on record certified copies of plaint, various orderspassed thereon, applications below Exhibit Nos.45,49,51, orderspassed thereon and Roznama. 9.The relationship inter se between the parties is not disputed.Appellants and other defendants who were defendant Nos.1 to 5, 7and 8 did not appear before trial court despite service of summons.Trial court passed order to proceed ex-parte against appellants andthose defendants on 17.03.2007. Appellants did not challenge orderdated 17.03.2007 either approaching High Court or any other Court.They preferred to file application Exhibit-45 on 24.04.2009 which wasrejected on 04.08.2009. It was not also challenged before any forum. Ihave gone through appeal memo of R.C.A. No.123 of 2010 which doesnot contain any specific challenge to either of the order passed duringpendency of the suit. In such a scenario, appeal is preferred by theappellants under Section 96(2) of C.P.C.10.Appellants have raised various issues on facts regardinginclusion of the Sy.No.36 and 605/1/B in the subject matter whichwere self-acquired properties and the manner in which those were 8 942.SA No.564-2023.doc acquired by the Appellant No.2. Before lower appellate court alsogrounds of objection were raised pertinently regarding entitlement offemale heirs to receive equal share, the property acquired by femalebecomes her absolute property, movable properties were not broughtin common hotchpot etc. In the absence of any pleadings in the trialcourt, no enquiry can be embarked upon these issues. When interimorders of passed against the appellants became final, it is notpermissible for them to raise above pleas. 11.During the course of submission in the present appeal and inthe lower appellate court also, it is agitated that appellants wereunable to file written statement because talks of compromise weregoing on. Even in High Court also the terms of settlement werepresented. The Respondent No.1 is alleged to have deceived theappellants in proceeding with the suit and securing decree before thetrial court. Those aspects of the matter can not be agitated whenappellants did not challenge order dated 17.03.2007 passed by thetrial court either before lower appellate court in R.C.A No.123 of 2010 orindependently in the High Court. Similarly, order dated 04.08.2009rejecting application Exhibit-45 was also not challenged. Now there isno alternative for the appellants than to be content with whateverpleadings and material brought on record by the Respondent No.1. 9 942.SA No.564-2023.doc 12.The observations recorded by lower appellate court inparagraph No.11 that appellants did not challenge order dated17.03.2007 is not correct because application Exhibit-45 was filed butthat mistake is inconsequential and would not vitiate the judgment. 13.I have gone through Order 8 Rule 10 of C.P.C. In the absence ofwritten statement, it would be open for the trial court to pronouncethe judgment against the defaulting party or make such order as itthinks fit. Trial court called upon the plaintiff to lead evidence. Plaintiffexamined himself. There was no cross-examination. The documentswere produced on record. In the absence of any contest to thepleadings and the material on record at the instance of Appellants,decree of partition was passed. There was no requirement of framingany issues. Trial court examined plaintiff’s case and thereafterpassed decree by assigning reasons. No fault can be found in saidjudgment. The substantial questions of law tried to be argued in thatregard holds no water. 14.The judgment of the lower appellate court contains only threepoints for determination. Merely framing incorrect points orinadequate points for determination would not vitiate the judgment ifin the texts, the necessary aspects of the matter is dealt with by the 10 942.SA No.564-2023.doc appellate court. Appellate court assigned the reasons as to how thecase is not made out for remand in the absence of any contest to thepleadings and the evidence. At the cost of repetition, it is observedthat the issues raised by the appellants regarding entitlement offemale heirs, not bringing of properties in common hotchpot and notincluding movable properties could not have been dealt with for thefirst time. Appellants preferred not to take recourse to Order 9 Rule 13of C.P.C so as to enable them to file written statement. In such ascenario, there was no need to frame any other points fordetermination. I find no illegality or perversity in the judgment of thelower appellate court. 15.The reliance is placed by lower appellate court in the judgmentsof Smt. Shoba Suresh Kurekar Vs.Mohan Suresh Kurekar reported in2017(3) Mh.L.J.334 and Bhanu Kumar Jain Vs. Archana Kumar andanother reported in 2005(2) MH.L.J 839, is apposite. In that matteralso defendant remained absent and suit proceeded ex-parte.Without taking recourse to Order 9 Rule 13 of C.P.C, appeal underSection 96 of C.P.C was filed. In paragraph No.6, the question forconsideration was stated. Thereafter, following are the relevantparagraphs : “9. In Bhanu Kumar Jain v. Archana Kumar & another [ 2005 (2) Mh.L.J. 11 942.SA No.564-2023.doc 839], the Honourable Supreme Court considered the question as to whetheran appeal under Section 96 of the Code was maintainable despite the factthat an application under provisions of Order-IX, Rule 13 of the Code wasdismissed. In that context, the following observations made in paragraphs24 and 25 of the said judgment are required to be taken into consideration :- "24. An appeal against an ex parte decree in terms of Section 96 (2) of theCode could be filed on the following grounds: (I) the material on record brought on record in the ex parte proceedingsin the suit by the plaintiff would not entail a decree in his favour, and (ii) the suit could not have been posted for ex parte hearing. "25. In an application under Order 9, Rule 13 of the Code, however, apartfrom questioning the correctness or otherwise of an order posting the casefor ex parte hearing, it is open to the defendant to contend that he hadsufficient and cogent reasons for not being able to attend the hearing of thesuit on the relevant date."10. From the aforesaid observations, it can be seen that in the appeal filedunder provisions of Section 96 (2) of the Code, it could be urged that thematerial brought on record by the plaintiff was not sufficient for passing adecree in his favour and that the suit could not have been posted for ex partehearing. On the other hand, under provisions of Order-IX, Rule 13 of theCode, the defendant can urge that he had sufficient and cogent reasons fornot attending the hearing of the suit on the relevant date. There is,therefore, material difference between the scope of both the proceedings. Inthe present case, as the appeal was filed under provisions of Section 96 (2) ofthe Code, the appellate Court ought to have decided the same in the light ofthe law as laid down.”16.I propose to follow the judgment referred above. Only courseavailable for the appellants was to urge that material brought onrecord by plaintiff was not sufficient for passing decree and the suitcould not have been posted for ex-parte hearing. I find that appellantsfailed to make out a case. My view is fortified by further judgment ofDivision Bench of Madhya Pradesh High Court in the matter of RamlalChaubasia and others Vs. Rewa Coal fields Ltd.,Calcutta reported in1966 JLJ 820. 12 942.SA No.564-2023.doc 17.It is useful to refer to judgment of the Supreme Court in thematter of G. N. Babu Vs. B. C. Muthappa and Ors., AIR 2022 SC 4213.The Respondents before the Supreme Court had filed suit fordeclaration and removal of structure erected illegally. Appellant did notappear and contest the suit. A decree was passed for declaration andinjunction against the Appellant before the Supreme Court. Thedecree was confirmed by the High Court. Against that, appeal waspreferred in the Supreme Court raising various contentions on merits.Simultaneously grievance of want of valid service of summons wasalso raised. In that context, judgment of Bhanu Kumar Jain (supra)referred above is also relied on and after quoting the relevantobservations of the Supreme Court, following observations are madein Paragraph Nos. 7 and 8 :“7. We have given careful consideration to the submissions. Firstly, we willdeal with the scope of adjudication in an appeal preferred under Section 96of CPC by a defendant against whom the trial court has proceeded ex parteand a decree has been passed. In the case of Bhanu Kumar Jain1 a Bench ofthree Hon’ble Judges of this Court dealt with a case where an applicationfor setting aside ex parte decree was filed by a defendant under Rule 13 ofOrder IX of CPC. The said application was dismissed. Even an appealpreferred against the order of dismissal of the said application wasdismissed. An appeal under Section 96 of CPC was also preferred by the saiddefendant. The submission before this Court was that the subject matter ofthe application under Rule 13 of Order IX of CPC and the subject matter ofthe appeal against decree being the same, it is against the public policy toallow two parallel proceedings to continue simultaneously. In paragraph 23of the decision, this Court noted that the question before it was whether anappeal against ex parte decree was maintainable despite the fact that anapplication under Rule 13 of Order IX of CPC was dismissed. Paragraphs 24to 27 of the said decision read thus : "24. An appeal against an ex parte decree in terms of Section 96 (2) of theCode could be filed on the following grounds: (I) the material on record brought on record in the ex parte proceedings 13 942.SA No.564-2023.doc in the suit by the plaintiff would not entail a decree in his favour, and (ii) the suit could not have been posted for ex parte hearing. "25. In an application under Order 9, Rule 13 of the Code, however, apartfrom questioning the correctness or otherwise of an order posting the casefor ex parte hearing, it is open to the defendant to contend that he hadsufficient and cogent reasons for not being able to attend the hearing of thesuit on the relevant date." 26. When an ex parte decree is passed, the defendant (apart from filing areview petition and a suit for setting aside the ex parte decree on the groundof fraud) has two clear options, one, to file an appeal and another to file anapplication for setting aside the order in terms of Order 9 Rule 13 of theCode. He can take recourse to both the proceedings simultaneously but inthe event the appeal is dismissed as a result whereof the ex parte decreepassed by the trial court merges with the order passed by the appellatecourt, having regard to Explanation appended to Order 9 Rule 13 of theCode a petition under Order 9 Rule 13 would not be maintainable. However,Explanation I appended to the said provision does not suggest that theconverse is also true.27. In an appeal filed in terms of Section 96 of the Code having regard toSection 105 thereof, it is also permissible for an appellant to raise acontention as regards correctness or otherwise of an interlocutory orderpassed in the suit, subject to the conditions laid down therein.”[Emphasis added].This Court held that though after dismissal of an appeal under Section 96of CPC against ex parte decree, application under Rule 13 of IX of CPC willnot be maintainable, there is no bar on unsuccessful defendant adoptingboth the remedies simultaneously. In such a case, if the regular appealagainst the decree is dismissed, obviously the application under Rule 13 ofOrder IX of CPC cannot proceed. The reason is that explanation to Rule 13of Order IX of CPC lays down that where there has been an appeal against adecree passed ex parte and the appeal has been disposed of on any groundother than withdrawal, application for setting aside ex parte decree will notlie. However, in the event an application under Rule 13 of Order IX of CPCis dismissed, the defendant can prosecute the appeal against the decree as aright to prefer appeal under Section 96 cannot be taken away in absence ofany express provision to the contrary in CPC. In paragraph 38 of theaforesaid decision, this Court held that when application under Rule 13 ofOrder IX of CPC filed by a defendant is dismissed, the defendant cannot bepermitted to raise a contention as regards the correctness or otherwise ofthe order posting the suit for ex parte hearing and/or existence of asufficient cause for non appearance of the defendant.8. In this case, the question is when the defendant did not avail the remedyunder Rule 13 of Order IX of CPC, whether it is open for him to agitate inthe regular appeal against the decree that the trial court had no justificationfor proceeding ex parte against the appellant. In such a case, though theappellant would not be entitled to lead evidence in appeal for making out asufficient cause for his absence before the trial court, he can always argue onthe basis of the record of the suit that either the suit summons was not 14 942.SA No.564-2023.doc served upon him or that even otherwise also, the trial court was not justifiedin proceeding ex parte against him. The reason is that under Section 105 ofCPC, when a decree is appealed from, any error, defect or irregularity in anyorder affecting the decision of the case can be set forth as a ground ofobjection in the Memorandum of Appeal. Thus, in such a case, the appellantcan always urge in an appeal against the decree that an interim orinterlocutory order passed during the pendency of the suit affecting thedecision of the case was illegal. Therefore, the appellant, while challengingex parte decree by filing an appeal, can always point out from the record ofthe trial court that the order passed to proceed with the suit ex parteagainst him was illegal. As held in the case of Bhanu Kumar Jain1, onlywhen the application made by a defendant under Rule 13 of Order IX ofCPC is dismissed that such a defendant cannot agitate in the appeal againstex parte decree that the order directing that the suit shall proceed ex partewas illegal or incorrect. However, in this case, the appellant has not filedapplication under Rule 13 of Order IX of CPC. Therefore, such a contentioncan be raised by him.” 18.Respondents further relied on the judgment of The GujaratMaritime Board (supra) to buttress that if the written statement is notfiled then civil court has jurisdiction to proceed under Order 8 Rule 10of C.P.C and the court should not act mechanically. Applying theprinciples laid down therein, I am of the considered view that the trialcourt did not act mechanically. It examined pleadings, material onrecord and then pronounced the judgment. 19.The Respondent No.1 has filed Civil Application No.7233 of 2019contending that Jandeo died on 07.12.2007. He was defendant No.1.He had purchased Sy.No.36 and open plot out of Sy.No.712. He diedintestate and his properties merged and partakes the joint familyproperties. Respondent No.1 should have brought to notice thesefacts either in the trial court or lower appellate court but that is mere 15 942.SA No.564-2023.doc irregularity. Delay in bringing these facts to the notice of the courtwould not change the legal position. The contention of the appellantsthat few left out properties are tried to be brought in commonhotchpot by seeking amendment to plaint, is incorrect. It ispermissible for the executing court or in further stages of theproceedings of partition decree to take cognizance of subsequentdevelopments. 20.For the reasons assigned above, I find no substance in thesubstantial questions of law and in the Second Appeal.21.Second Appeal is dismissed. 22. Civil Application No.7233 of 2019 is disposed of with a liberty tothe parties to agitate the factual aspects contained in the applicationeither before executing court or at further stages of proceedings. 23. Civil Application No.8685 of 2018 is disposed of. SHAILESH P. BRAHME JUDGE Najeeb…..