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2012 DIGILAW 1064 (BOM)

L & K Associates v. Koshy Builders Pvt. Ltd.

2012-06-15

F.M.REIS

body2012
Judgment : Heard Shri A. R. Kantak, learned counsel appearing for the appellant and Shri M. Amonkar, learned counsel appearing for the respondent. 2. Admit on the following substantial question of law: “Whether the cross objections filed by the appellant have been rejected by the Lower Appellate Court without scrutinizing the evidence on record and misreading the evidence led by the parties before the Court?” 3. Heard forthwith by the consent of the learned Counsels. The learned counsel appearing for the respondent waives service. 4. A short point in controversy in the above Second Appeal is that the appeal preferred by the respondent before the learned Additional District Judge, South Goa, Margao, came to be dismissed wherein the appellant has also filed the cross objections challenging the findings on the issue no.3 framed by the learned Trial Judge refusing the relief claimed by the appellant for mesne profit/damages in the suit. 5. Shri Kantak, learned Counsel appearing for the appellant has taken me through the judgment and decree 25.04.2011 passed by the Lower Appellate Court and pointed out that in the operative part of the judgment though the appeal preferred by the respondent is stated to have been dismissed but however there is nothing shown therein as to the fate of the cross objections filed by the appellant. The learned counsel further pointed out that in the issues filed before the learned Trial Judge, there was a specific claim put forward by the appellant to the effect that the appellant is entitled for mesne profit of Rs.7000/- per month with effect from 01.02.2002 till handing over of the possession of the flat no. FF-18 on the 4th floor, Belmira Plaza at Vasco-da-Gama, Goa. The learned counsel further pointed out that the learned Judge has not scrutinized the evidence on record to ascertain as to whether the findings of the learned Trial Judge to the effect that no evidence has been adduced on that count is justified or not. The learned counsel has taken me through the evidence of DW1 and pointed out that according to him, there is a specific admission by the said respondent with regard to the quantum of such profit. The learned counsel has taken me through the evidence of DW1 and pointed out that according to him, there is a specific admission by the said respondent with regard to the quantum of such profit. The learned Counsel further pointed out that the findings of the learned Judge on the cross objections cannot be sustained and as such the Lower Appellate Court be directed to reconsider the cross objections filed by the appellant. 6. On the other hand, Shri M. Amonkar, learned counsel appearing for the respondent has taken me through the findings of the Lower Appellate Court at para 21 of the impugned judgment and pointed out that the learned Judge has accepted the findings of the learned Trial Court to the effect that the appellants have not adduced any evidence to substantiate their claim of mesne profit. The learned counsel however did not dispute the fact that such cross objections were filed by the appellant and further that besides the said findings at para 21, the learned Judge has not scrutinized the evidence relied upon by the appellant in support of such claim. The learned Counsel further pointed out that the respondent has not filed any Second Appeal challenging the dismissal of the appeal filed by the respondent. The learned counsel as such submits that no interference is called for in the impugned judgment on that count. 7. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. The cross objections filed by the appellant have been rejected by the Lower Appellate Court by a sweeping observations that the Lower Appellate Court accepts the findings of the learned Trial Judge that no evidence has been adduced by the appellant to substantiate such claim. But however on perusal of the evidence of PW1 and PW2 read with the evidence of DW1 as pointed out by the learned Counsel appearing for the appellant, it appears prima facie that evidence has been adduced by the appellants to substantiate their claim. It is well settled that the First Appellate Court whilst examining the evidence on record has to scrutinize every piece of evidence adduced by the parties and arrive at specific findings as to why such evidence has not been considered. It is well settled that the First Appellate Court whilst examining the evidence on record has to scrutinize every piece of evidence adduced by the parties and arrive at specific findings as to why such evidence has not been considered. In the present case, I find that the Lower Appellate Court has not at all scrutinized the evidence of PW1, PW2 and DW1 to arrive at the findings with regard to the cross objections. Failure to do so has resulted in perversity in the findings by the Lower Appellate Court on that aspect whilst dealing with the cross objections. As such, in the interest of justice, it would be appropriate that the matter be remanded to the Lower Appellate Court to reconsider only the cross objections filed by the appellant on the findings on issue no.3, a fresh after hearing the parties. The Lower Appellate Court shall not be influenced by any observations made in the present judgment while deciding the cross objections a fresh in accordance with law. The substantial question of law is answered accordingly. 8. In view of the above, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The judgment and decree passed by the Lower Appellate Court dated 25.04.2011 is quashed and set aside to the extent it dismisses the cross objections filed by the appellant. (iii) The Lower Appellate Court is directed to decide the cross objections filed by the appellant a fresh after hearing the parties in accordance with law. (iv) All the contentions of the parties on merits on the cross objections are left open. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) The parties are directed to appear before the learned Lower Appellate Court on 23.07.2012 at 2.30 p.m.