Bombay High Court
Case Details
1 AO 4/2018 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.4 OF 2018 WITH CA/389/2018 IN AO/4/2018 WITH CA/389/2018 IN AO/4/2018 Yakubkhan s/o. Rashidkhan Pathan, Age : 45 years, Occu. Agriculture, R/o. Borgaon (Bk), Tq. & Dist. Latur Versus Gokuldas Mathuradas Rathi Died through his L.Rs. 1] 2] 3] Smt. Archana Gokuldas Rathi, Age : 45 years, Occu. Household & Agri. Dheeraj s/o. Gokuldas Rathi Age : 27 years, Occu. : Business & Agri. Gunjan s/o. Gokuldas Rathi Age : 22 years, Occu. Business & Agri. All R/o. Adarsha Colony, Latur, Tq. & Dist. Latur
Legal Reasoning
....Appellant. (Orig. Plaintiff) ....Respondents (Orig. Defendants)
Legal Reasoning
... Advocate for Appellants : Mr. M.D. Shinde ... CORAM : ARUN R. PEDNEKER, J. DATED : 24/07/2023 JUDGMENT : 1. Heard the learned counsel for the appellant. The appellant is the original plaintiff, who has filed RCS No. 175/2009 for declaration that the sale deed executed by the father of the plaintiff in favour of original defendant on 21.12.1988 is not binding on the plaintiff and for permanent injunction. 2. The Trial Court, on consideration of the pleadings of the parties, formulated the following issues and it’s findings thereon, as under :- 2 AO 4/2018 1- 2- 3- ISSUES Okknh nkO;krhy ekyeRrslaca/kh gDd ekydh o R;krhy vf/kdkj fl/n djrks dk; \ Okknh gk fnukad 21-12-1988 iaphd`r fodzh[kr iqLrhdspk dzekad 6747@1988 gk csdk;ns’khj nLrk,sot vkgs] rls vlY;keqGs oknhyk rks ca/kudkjd ukgh] gs oknh fl/n djrks dk; \ fodzh[kr fnukad 21-12-1988 iaphdj.k iqLrd dz- 6747@88 gk nLrk,sot csdk;ns’khj vlY;keqGs R;k vk/kkjs oknhP;k rkC;kl vMFkGk o R;kP;k vf/kdkjkr csdk;ns’khj <oGk<oG djrks gs oknh fl/n djrks dk; \ FINDINGS gks;- gks;- -- -- -- ukgh- 4- oknhus ekfxrysY;k izkFkZuk leklkrhy ekx.;kackcr laiw.kZ ;ksX;rk oknhus fl/n dsyh dk; \ -- va’kr% gks;- 5- nkO;kpk [kpZ dks.kkoj yknk;pk \ 6- vafre vkns’k dk; \ -- -- izfroknhoj vafre vkns’kkizek.ks- 3. The Trial Court, on consideration of the material held that the sale deed dated 21.12.1988 executed by the father of the plaintiff in favour of the defendant is not binding upon the plaintiff. The Trial Court, however, dismissed the suit for perpetual injunction. 4. Aggrieved by the order passed by the Trial Court, the original defendant filed Regular Civil Appeal No. 150/2015 before the Appellate Court. The Appellate Court, on consideration of the material on record, formulated points for determination, which are as under :- POINTS FINDINGS 1. Whether the defendant has proved that the .. Redundant. 3 AO 4/2018 suit is barred by limitation ? 2. Whether the plaintiff has proved that it was .. Redundant. nominal sale deed ? 3. Whether the plaintiff has proved that he is having right, title and interest over the suit property ? .. Redundant. 4. Whether the plaintiff has proved that the registered sale-deed in day book No. 6747, dt. 21.12.1988 is null and void and binding on plaintiff ? .. Redundant. 5. Whether the plaintiff has proved that on the registered sale-deed dt. basis of 21.12.1988, the defendant is obstructing and interfering into his peaceful possession over the suit property ? .. Redundant. 6. Whether the plaintiff is entitled for the relief .. Redundant. as claimed ? 7. To whom the costs should be saddled ? .. Redundant. 8. Whether any interference is warranted in the .. impugned judgment and decree ? In the affirmative. 9. What order ? .. Appeal is allowed and the matter is remanded back to Trial Court. 5. The Appellate Court, on examination of the material found that the basic issue of limitation was not formulated by the Trial Court, so also the issue, whether the plaintiff has proved that the sale deed executed between the father of the plaintiff and the original defendant was nominal sale deed and without consideration. The Appellate Court found that the basic issue of limitation, so also the nature of sale deed on the basis of which the contentions of the parties are based have not been framed and 4 AO 4/2018 decided by the Trial Court. In view of the same, the Appellate Court set aside the order passed by the Trial Court and formulated two issues and remanded the matter back to the Trial Court to decide the issues framed by the Appellate Court afresh. 6. Notices were issued in the matter by this Court. However, the respondent/defendant has not turned up. On 23.6.2023 at the request of appellant matter was adjourned and none appeared for respondent. Again this matter was listed on 7.7.2023 and none appeared for the respondent. Thereafter, this matter was again listed on 21.7.2023, then also none appeared for the respondent. The matter was part heard. Even today nobody appears for the respondents. The respondents are consistently absent in the matter. Thus, I proceeded to decide this matter. 7. It is the contention of the appellant/plaintiff that the entire order of the Trial Court ought not to have been set aside and the matter ought not to be remanded in it’s entirity to the Trial Court. Additional issues ought to have been formulated by the Appellate Court and only the additional issues could have been remitted to the Trial Court. Setting aside the matter in it’s entirity would delay the proceedings without any cause. The learned counsel submits that the power under Order 42, Rule 25 of Civil Procedure Code had to be exercised by the Appellate Court to get the issues decided. 8. As there was no basic infirmity in conduct of the trial by the Trial Court and thus the entire judgment of the Trial Court ought not to have been set aside by the Appellate Court. The Appellate Court ought to have exercised the powers under Order 42, Rule 25 of CPC and should have only remanded the matter back to the Trial Court to the extent of additional issues framed by the Appellate Court. 5 AO 4/2018 9. In view of the same, the order passed by the Appellate Court is modified to the extent that the Trial Court to decide the issues framed by the Appellate Court after permitting the parties to lead the evidence on the issues and rendering findings thereon. The Trial Court to decide the issues framed within a period of six months from the date of order after giving notices to the parties. The Trial Court to decide the additional issues after following due process and sent the matter to the Appellate Court for deciding the appeal. The Regular Civil Appeal No. 150/2015 is restored before the Appellate Court. Thereafter, the Appellate Court shall decide the appeal in accordance with law. Appeal from Order is disposed of accordingly. Civil Applications, if any, are disposed of. Record and proceedings be sent back. ssc/ [ARUN R. PEDNEKER J.]