Udesing Dabhising @ Dahyabhai Galabhai Sodha Parmar v. Shanabhai Saburbhai Sodha Parmar — 1998 DIGILAW 496 (GUJ)

S. K. KESHOTE, J. ( 1 ) THIS second appeal is directed against the decree and judgment dated 30th March, 1998, of the 4th Extra Assistant Judge, Kheda at Nadiad, in Regular Civil appeal No. 86/92, arising out of the judgment and decree dated 30th November, 1989 passed by the Joint Judge (J. D.) Naidad, in Regular Civil Suit No. 491 of 1986. By his judgment and order dated 30th March, 1989 the first Appellate Court has set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court with direction to proceed with the suit by giving ample opportunity of hearing to the respondent herein. The respondent-defendant was further directed to file written statement on the first date of hearing of the suit which is fixed by the Trial Judge, and the suit was directed to be disposed of accordingly, within three months from the date of filing of the written statement. ( 2 ) LEARNED counsel for the respondent has raised preliminary objection that this second appeal under Sec. 100 CPC against the impugned judgment of the first Appellate court is not maintainable. Under the impugned judgment the first Appellate Court has remanded the matter to the Trial Court for deciding the suit afresh and this judgment and order in fact passed is in exercise of the powers conferred on the first Appellate Court under Order 43 Rule 1 of CPC and, instead of second appeal, from order should have been filed. ( 3 ) LEARNED counsel for the appellant-plaintiff does not dispute this legal position as contended by the learned counsel for the respondent-defendant. However, prayer has been made by the learned counsel for the appellant that this appeal may be treated as appeal from order and it may be decided accordingly. Learned counsel for the respondent- defendant does not dispute the postition that against the impugned judgment of the first appellate Court appeal from order does lie to this Court only. So it is the from and not the substance which is in fact insisted upon by the learned counsel for the respondent- defendant. Either it is appeal under Sec. 100 of CPC or Appeal from Order, limitation is same as well as in either case appeal does lie to this Court. Be that as it may. So it is the from and not the substance which is in fact insisted upon by the learned counsel for the respondent- defendant. Either it is appeal under Sec. 100 of CPC or Appeal from Order, limitation is same as well as in either case appeal does lie to this Court. Be that as it may. It is hereby ordered for convertion of the second appeal into Appeal from Order. Office is directed to make necessary correction in the cause title as well as the record of this Court. ( 4 ) LEARNED counsel for the appellant contended that the first Appellate Court has committed serious error and illegality in remanding the matter to the Trial Court for decision of the suit afresh. The respondent defendant was served with summons of the suit. In suit the advocate has appeared on behalf of the respondent defendant. Despite service of summons of the suit the respondent defendant has not chosen to file written statement. At a later point of time the advocate who was appearing for respondent- defendant in the Trial Court filed pursis for his withdrawal from the suit. On this pursis notice has been sent to the respondent defendant and despite service of notice at that stage also the respondent-defendant had not cared to put appearance in person or through another advocate. The learned Trial Court in the presence of these facts has not committed any error in passing the decree in the matter. ( 5 ) LEARNED counsel for the respondent urged that it is a clear case where fraud has been committed by the advocate. The respondent-defendant had not engaged advocate to appear in the civil suit on his behalf. Carrying this contention further counsel for the respondent-defendant contended that the advocate was not given vakalatnama nor was he given any instructions by the respondent-defendant to put appearance. However, learned counsel for the respondent-defendant does not dispute that summons of the suit has been served upon his client. Laastly, learned counsel for the respondent defendant contended that though from the proceedings of the civil suit it appears that the service of notice of the pursis filed by the advocate has been served upon the respondent-defendant, infact the notice has not been received by the respondent defendant. Laastly, learned counsel for the respondent defendant contended that though from the proceedings of the civil suit it appears that the service of notice of the pursis filed by the advocate has been served upon the respondent-defendant, infact the notice has not been received by the respondent defendant. Learned counsel for the respondent- defendant has drawn the attention of the Court to the fact that on the record of the civil suit a copy of the notice of pursis which has been sent to the respondent- defendant is not there. The record of the civil suit has been perused by the learned counsel for the appellant-plaintiff and after going through it he admitted that copy of the notice of the prusis which was sent to the respondent-defendant is not on the record ( 6 ) I have given my thoughtful consideration to the rival contentions advanced by the learned counsel for the parties in this appeal. On 4. 7. 1989 the counsel who put appearance on behalf of the respondent-defendant filed pursis and prayer has been made therein for his withdrawal from the suit. On 17th July, 1989 Court ordered for issue of notice of this pursis to respondent defendant which was made returnable on 29th July, 1989. Reference has been made by the learned counsel for the parties to the order dated 22. 8. 1989 wherein i find that the Court has recorded the notice of the pursis is served upon the respondent-defendant through the Court. The Court has further recorded that none remained present on behalf of the respondent and the matter was posted on 19th October, 1989. On 19th October, 1989 none remained present on behalf of the respondent defendant. The Trial Court has heard argument of the learned counsel for the appellant-plaintiff and on 30th October, 1989 the suit was decreed. From the proceeding of the suit I find that the Court has accepted the service of notice of pursis of the counsel for the respondent-plaintiff through the Court. It is true that normally the proceedings as recorded by the Courts below should be accepted, and those who challenges the correctness of the order has to either file review application or challenge the legality or propriety and correctness thereof in appeal. It is true that normally the proceedings as recorded by the Courts below should be accepted, and those who challenges the correctness of the order has to either file review application or challenge the legality or propriety and correctness thereof in appeal. However, in the present case I find a significant fact that copy of the notice of the pursis of the advocate which has been sent to the respondent-defendant is not on record. This document which is part of judicial record is very important and relevant material. I am constrained to observe that the first appellate Court has taken this matter very casually and the seriousness in the maintenance of record of the Trial Court has not been taken note of. Missing of document from the judicial record is a matter of serious concern for the Court. While dealing with the appeal, it is a different matter that the Appellate Court may have taken any view on merits thereof in accordance with law, but when this important fact of missing of document from the record of the Trial Court has come to its notice appropriate order should have been passed to direct inquiry and whosoever is found responsible on inquiry for this negligence should have been properly dealt with. Possibility of deliberate attempt on the part of some person in the office of the Trial Court to favour either party to the litigation to remove this document from the record cannot be ruled out. Either of the parties to the suit may also be interested to remove this document from the record, but no final opinion can be formed and given unless detailed inquiry is made in the matter. Be that as it may. The District Judge, Kheda at Nadiad is directed to hold inquiry into the matter and whosoever is found responsible for the missing of this document from the record of the civil suit should be appropriately dealt with in a departmental inquiry. Result of such inquiry should be intimated to this Court. The inquiry shall be completed within a period of six months from the date of receipt of copy of this order. Result of such inquiry should be intimated to this Court. The inquiry shall be completed within a period of six months from the date of receipt of copy of this order. The District Judge is further directed to go into the question whether any party to the suit is responsible in any manner for the missing of the important document form the record, and if he is prima facie satisfied that the parties to suit or either of them is also involved this matter, FIR or criminal complaint be lodged or filed against all culprits inclusive of the employees or officers of the Court concerned. ( 7 ) ON merits I find that the appellate Court has passed just and reasonable order in the facts of the present case to which no exception canbe taken. The respondent defendant has made serious allegation that he was subjected to fraud committed by the advocate. There are allegations that he has not engaged that advocate nor has he given any instruction to him to appear on his behalf. From the proceedings of the Trial Court I find that the advocate has put appearance on certain dates on behalf of the respondent, but he has not filed written statement, nor has he done anything in the suit except simply putting appearance. The Court below has not addressed itself on the question whether it was a fraud committed by the advocate on the party or not. At the final stage of the suit the counsel has decided to withdraw himself from the suit. That creates some suspicion in the mind of the Court about the conduct of the matter by the concerned advocate. In case for undisclosed reasons he was not interested to continue to appear on behalf of the defendant, then he should have withdrawn his appearnace long back, and he should not have waited for withdrawal of his appearance till the suit was permitted to reach to final stage. The learned first Appellate Court has not recorded any finding whether it is a case of fraud committed by the advocate. But looking to the facts of this case the view taken by the Appellate Court cannot be said to be unreasonable or which could not have been taken in the given facts to do substantial justice to the litigant. The learned first Appellate Court has not recorded any finding whether it is a case of fraud committed by the advocate. But looking to the facts of this case the view taken by the Appellate Court cannot be said to be unreasonable or which could not have been taken in the given facts to do substantial justice to the litigant. Much thrust has been put by the learned counsel for the repsondent that the defendant has delayed the Trial of the suit. The suit is of the year 1986, and the Courts should not have given indulgence to the respondent defendant. I do not find any substance in this contention for the reason that in case where the Court finds that the respondent-defendant for the reasons as recorded in the judgment had not sufficient opportunity to defend the suit, the Court below has all the powers to correct the error in the judgment and pass appropriate order of remanding the matter to the Trial Court for decision on merits. ( 8 ) TAKING into consideration the long time between the filing of the it and the decision thereof, the appellant plaintiff is sufficiently protected by awarding cost, and further direction is given to the Trial Court to decide the matter finally within three months from the date of receipt of copy of this order. In the result this appeal fails and the same is dismissed. No order as to costs. .