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2012 DIGILAW 352 (BOM)

Shripad Ganesh Naik v. Bhiku Ganesh Naik

2012-02-16

F.M.REIS

body2012
Judgment F. M. reis, j. 1. Heard shri i. Agha, learned counsel appearing for the appellants and shri v. nAik, learned counsel appearing for the respondent no.1. 2. Admit on the following substantial question of law : whether the lower appellate court has complied with the provisions of order 41 rule 31 of civil procedure code whilst passing the impugned judgment in regular civil appeal no. 147/2010 ? 3. Heard forthwith by consent of learned counsels. 4. Shri v. nAik, learned counsel waives service on behalf of respondent no.1. 5. The above appeal challenges the judgment dated 23.08.2010 passed by the learned ad-hoc district judge-1, ftc, panaji, in regular civil appeal no. 147/2010 whereby the appeal preferred by the respondent no.1 was disposed of inter-alia setting aside the judgment and decree dated 12.01.2010 passed by the learned civil judge junior division, ponda, in regular civil suit no. 87/2008/c. The learned lower appellate court partly decreed the suit filed by the appellants and the respondent no.1 was restrained from doing any further construction in the suit area beyond the plinth area of the existing structures. The counter claim filed by the respondent no.1 was also partly decreed and the appellants were restrained from doing any construction in the suit area beyond the plinth of the existing structure. 6. Shri agha, learned counsel appearing for the appellants has assailed the impugned judgment and pointed out that the lower appellate court has not at all scrutinized the evidence on record whilst disposing of the appeal filed by the respondent no.1. The learned counsel has taken me through the impugned judgment and pointed out that there is no independent discussion carried out by the lower appellate court whilst disposing of the appeal preferred by the respondent no.1. The learned counsel further pointed out that there was a specific defence taken by the appellants to the effect that the counter claim filed by the respondent no.1 was barred by law of limitation. The learned counsel further pointed out that this aspect which was raised by the appellants has not even been considered by the lower appellate court. The learned counsel further pointed out that the effect of the impugned judgment is that both the parties have been permanently restrained from carrying out any construction in their respective properties which is something unheard in law. The learned counsel further pointed out that the effect of the impugned judgment is that both the parties have been permanently restrained from carrying out any construction in their respective properties which is something unheard in law. The learned counsel further submitted that the lower appellate court ought to have scrutinized each and every piece of evidence adduced by both the parties and arrived at independent findings whilst disposing of the appeal preferred by the respondent no.1. The learned counsel in support of his submissions has relied upon a judgment of the apex court reported in (2001) 3 scc 179 in the case of santosh hazari v/s purushottam tiwari ( deceased ) by lrs. 7. On the other hand, shri v. nAik, learned counsel appearing for the respondent no.1 has supported the impugned judgment and pointed out that the learned lower appellate court has rightly disposed of the appeal preferred by the respondent no.1. The learned counsel however fairly contended that there is no scrutiny of evidence nor independent appreciation of evidence by the learned judge whilst disposing of the appeal. 8. Having heard the learned counsels and on perusal of the records, i find that the lower appellate court has not scrutinized the evidence on record independently nor appreciated the material adduced by both the parties whilst disposing of the appeal. The apex court in the recent judgment reported in 2011(4) scc page 240 in the case of h. Siddiqui ( dead) by lrs v/s a. rAmalingam has categorically held that the first appeal is a substantial right of the party and it is incumbent upon the first appellate court to independently scrutinize the evidence and appreciate the material adduced by the parties whilst disposing of the first appeal. In the present case, i find that the learned judge has not complied with these settled principles laid down by the apex court whilst disposing of the appeal preferred by the respondent no.1. The judgment of the apex court relied upon by the learned counsel appearing for the appellants also supports the contention of the appellants that the learned judge has not appreciated the evidence whilst disposing of the appeal by partly modifying the judgment passed by the learned trial judge. 9. The judgment of the apex court relied upon by the learned counsel appearing for the appellants also supports the contention of the appellants that the learned judge has not appreciated the evidence whilst disposing of the appeal by partly modifying the judgment passed by the learned trial judge. 9. Without going into the correctness of the rival contentions on merits, i find it appropriate in the interest of justice that the impugned judgment passed by the lower appellate court deserves to be quashed and set aside and the lower appellate court be directed to decide the appeal filed by the respondent no.1 a fresh after hearing the parties in accordance with law. 10. In view of the above, i pass the following :o r d e r (i) the appeal is partly allowed.at* (ii) the impugned judgment and decree dated 23.08.2010 passed by the learned ad-hoc district judge-1, ftc, panaji is quashed and set aside. (iii) regular civil appeal no. 147/2010 is restored to the file of the learned district judge-1, ftc, panaji. (iv) the learned district judge, ftc, panaji, is directed to decide the appeal filed by the respondent no.1 a fresh on its own merits after hearing the parties in accordance with law. (v) all the contentions of both the parties on merits are left open. (vi) the appeal stands disposed of accordingly with no order as to costs. (vii) the parties are directed to appear before the learned district judge-1, ftc, panaji, on 26.03.2012 at 10.00 a.m.