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2013 DIGILAW 1722 (BOM)

Audu M. Gaude v. Rogunata Boto Dovolkar

2013-08-26

F.M.REIS

body2013
JUDGMENT Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants and Shri R.G. Ramani, learned Counsel appearing for the Respondent nos. 1 and 2-Original Plaintiffs. 2. The above Appeal challenges an Order passed by the learned District Judge dated 18.12.2007 passed in Regular Civil Appeal No. 77/2002, whereby the Judgment and Decree passed by the learned Trial Court dated 30.04.2002, was quashed and set aside in view of an Order passed by the learned Judge allowing an application filed by the Respondent nos. 1 and 2 under Order 41 Rule 27 of the Civil Procedure Code for additional evidence. 3. After being served in the above Appeal, the Respondent nos. 1 and 2, filed cross objections challenging an Order passed by the learned District Judge dated 31.03.2006, whereby an application for amendment of the plaint filed by the said Respondents, came to be dismissed. 4. Shri S.D. Lotlikar, learned Senior Counsel appearing for the Appellants in the Appeal, has assailed the impugned Order on the ground that a well reasoned Judgment passed by the learned Trial Court came to be quashed by the learned Lower Appellate Court only on the ground that an application under Order 41 Rule 27 came to be allowed. Learned Senior Counsel has thereafter taken me through the original pleadings of Respondent nos. 1 and 2/Plaintiffs in the suit and pointed out that the said Respondents at para no. 1 of the plaint, have identified the suit property and thereafter have more particularly disclosed the description of the suit property at para 10 of the plaint. The learned Senior Counsel further pointed out that the documents which have been all owed to be produced by the learned Judge whilst passing the impugned Order, were essentially to disclose the historical facts as to the source of the title as well as the origin of title of the Respondents herein. The learned Senior Counsel further pointed out that the suit property has been identified by the Respondent nos. 1 and 2 on the basis of the Land Registration document, Matriz document and the Survey documents and that such historical facts are irrelevant for the purpose of deciding the suit. The learned Senior Counsel further pointed out that the suit property has been identified by the Respondent nos. 1 and 2 on the basis of the Land Registration document, Matriz document and the Survey documents and that such historical facts are irrelevant for the purpose of deciding the suit. The learned Senior Counsel further pointed out that all the material which is sought to be produced has no bearing with the matter in controversy and, as such, the learned Judge was not justified to pass the impugned Judgment. Learned Senior Counsel has, thereafter, taken me through the impugned Judgment and pointed out that the learned Lower Appellate Court and submitted that only because the documents were allowed to be produced, proceeded to set aside the Judgment passed by the learned Trial Court without ascertaining any ambiguity or error in the reasoning in the Judgment passed by the learned Trial Judge. The learned Senior Counsel pointed out that as the amendment application was already rejected by the learned Lower Appellate Court on the earlier occasion, the question of allowing the documents which are referable to the proposed amendment, is not at all justified. Learned Senior Counsel further pointed out that while dismissing the application for amendment, the learned Judge had come to the conclusion that due diligence was not established and, consequently, the learned Lower Appellate Court whilst passing the impugned Judgment, was not correct to come to the conclusion that the Respondent nos. 1 and 2 have established due diligence as to why such documents were not produced before the learned Trial Court. The learned Senior Counsel has also raised an objection to the maintainability of the cross objections and pointed out that in the Appeal preferred by the Appellants, the question of challenging the earlier Order dismissing the application for amendment of the Respondent nos. 1 and 2 is totally uncalled for. In support of his submissions, the learned Senior Counsel has relied upon the Judgment of the Apex Court reported in (2012) 8 S.C.C. 148 : (2012(5) ALL MR 462 (S.C.)] in the case of Union of India vs. Ibrahim & anr. 5. On the other hand, Shri R.G. Ramani, learned Counsel appearing for the Respondent nos. In support of his submissions, the learned Senior Counsel has relied upon the Judgment of the Apex Court reported in (2012) 8 S.C.C. 148 : (2012(5) ALL MR 462 (S.C.)] in the case of Union of India vs. Ibrahim & anr. 5. On the other hand, Shri R.G. Ramani, learned Counsel appearing for the Respondent nos. 1 and 2/Plaintiffs, has pointed out that the learned Trial Court whilst passing the Judgment impugned before the learned Lower Appellate Court had, inter alia, come to the conclusion that the original source of title of the said Respondents has not been established. Learned Counsel further pointed out that though the material on record established the claim of the Respondents, nevertheless, to overcome the said findings, the Respondents were forced to file an amendment application to amplify the original pleadings and to produce documents in support of such pleadings. Learned Counsel further pointed out that as the said documents were relevant to decide the matter in controversy and in view of the fact that the said documents would nullify the findings of the learned Trial Court, the learned Lower Appellate Court was justified to quash and set aside the Judgment of the learned Trial Court. Learned Counsel further pointed out that in terms of Order 43 Rule 2 of the Civil Procedure Code, the powers of the Appellate Court in terms of Order 41 which are not inconsistent are also applicable to such Appeals. Learned Counsel as such submits that as the Order dismissing the application for amendment is not appealable in terms of Order 43 Rule 1 of the Civil Procedure Code, the Respondents are entitled to file their Cross Objections in terms of Order 41 Rule 22 of the Civil Procedure Code. The learned Counsel further submits that the documents which have been produced were not to the knowledge of the said Respondents during the pendency of the trial and, consequently, the learned Judge was justified to allow the production of such documents. Learned Counsel further submits that the learned Judge has erroneously dismissed the application for amendment as, according to him, such amendment was very much necessary to decide the matter in controversy. Learned Counsel further submits that the learned Judge has erroneously dismissed the application for amendment as, according to him, such amendment was very much necessary to decide the matter in controversy. Learned Counsel further pointed out that the learned Judge has applied the principles of due diligence in terms of Order 6 Rule 17 of the Civil Procedure Code whilst dismissing the application of amendment when the proviso is not applicable to the suit filed by the Respondents in the year 1981. Learned Counsel further submits that only because due diligence has not been established, the learned Judge has dismissed the application for amendment. Learned Counsel has taken me through the Judgment of the learned Judge dismissing the application for amendment and pointed out that such application has been erroneously dismissed. 6. I have carefully considered the submissions of the learned Counsel. I have also gone through the records. Without going into the merits of the rival contentions with regard to the Order allowing the application under Order 41 Rule 27 of the Civil Procedure Code and the Order dismissing the application for amendment under Order 6 Rule 17 of the Civil Procedure Code, it would be appropriate to consider whether the learned Trial Court was justified to quash and set aside the Judgment of the learned Trial Judge merely because the application under Order 41 Rule 27 of the Civil Procedure Code came to be allowed. Before setting aside the Judgment of the Trial Court, it is expected of the Lower Appellate Court to go into the reasons in the Judgment of the Trial Court and consider whether in view of the document sought to be introduced, the findings of the learned Trial Court would stand vitiated. In the present case, besides arriving at the conclusion that the Respondents/Plaintiffs have failed to establish their claim in the suit property, there were also findings in favour of the Appellants herein whilst deciding issue no. 5 in favour of the Appellants herein. On plain reading of the impugned Judgment passed by the Lower Appellate Court, I find no scrutiny of the findings of the learned Trial Court viz-a-viz the documents which were sought to be introduced by the Respondent nos. 1 and 2 herein to ascertain in what manner, such findings would stand vitiated which would necessitate further recording of evidence. On plain reading of the impugned Judgment passed by the Lower Appellate Court, I find no scrutiny of the findings of the learned Trial Court viz-a-viz the documents which were sought to be introduced by the Respondent nos. 1 and 2 herein to ascertain in what manner, such findings would stand vitiated which would necessitate further recording of evidence. It is not open to the Lower Appellate Court to set aside the Judgment passed by the learned Trial Court unless and until such infirmities are found which regards a fresh trial of the suit. On going through the impugned Judgment, I find that the only ground on which the judgment of the Trial Court is set aside is because an application under Order 41 Rule 27 of the Civil Procedure Code was allowed by the Trial Court. I am afraid that this procedure by the learned Lower Appellate Court is not at all justified and is not in accordance with law. On this ground alone, the Judgment of the Lower Appellate Court setting aside the Judgment of the Trial Court, deserves to be quashed and set aside. 7. Taking note of all the contentions of Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants and Shri R. G Ramani, learned Counsel appearing for the Respondent nos. 1 and 2 to the effect that the documents which have been produced which, according to the Respondent nos. 1 and 2, are relevant to decide the matter in controversy and it is now well settled that such application to lead additional evidence under Order 41 Rule 27 of the Civil Procedure Code, is to be considered at the time of the final hearing of the Appeal on merits, I find it appropriate taking into consideration the view I propose to take in the above Appeal, to direct the learned Judge to decide the said application afresh after hearing the parties in accordance with law. 8. Having regard to the proviso to Order 43 Rule 2 of the Civil Procedure Code, I find the contention of Shri S.D. Lotlikar, learned Senior Counsel, that the Respondents are not entitled to file cross objections, cannot be accepted. Taking note of the contention of Shri Ramani, learned Counsel appearing for the Respondent nos. 8. Having regard to the proviso to Order 43 Rule 2 of the Civil Procedure Code, I find the contention of Shri S.D. Lotlikar, learned Senior Counsel, that the Respondents are not entitled to file cross objections, cannot be accepted. Taking note of the contention of Shri Ramani, learned Counsel appearing for the Respondent nos. 1 and 2 that the proposed amendment has, according to him, nexus to the documents which are sought to be introduced, though such submission is seriously disputed by Shri S. D. Lotlikar, learned Senior Counsel, I find it appropriate and in the interest of justice in the peculiar facts and circumstances of the case, to direct the learned Judge to dispose of the application under Order 41 Rule 27 of the Civil Procedure Code as well as the application under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code for amendment of the plaint filed by the Respondent nos. 1 and 2 afresh at the time of the hearing of the Appeal filed by the Respondents on merits. After hearing the parties and considering the said two applications and after going through the findings of the learned Trial Court, it is always open for the learned Judge to take appropriate recourse in terms of Section 107 of the Civil Procedure Code in accordance with law. All contentions of both the parties on merits of the dispute as well as the merits of the said two applications filed by the Respondent nos. 1 and 2, are left open. 9. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The Cross Objections filed .by the Respondent nos. 1 and 2 are also partly allowed. (iii) The impugned Judgment passed by the learned Trial Judge dated 30.04.2002 as well as the Order dated 18.12.2007 passed by the learned Appellate Court, are quashed and set aside. (iv) Regular Civil Appeal no. 77 of 2002 is restored to the file of the Lower Appellate Court. (v) The Lower Appellate Court is directed to dispose of the said Appeal as well as the applications for amendment at exhibit 16 and the application for additional evidence under Order 41 Rule 27 at exhibit 15 afresh in the light of the observations made herein above after hearing the parties in accordance with law. (v) The Lower Appellate Court is directed to dispose of the said Appeal as well as the applications for amendment at exhibit 16 and the application for additional evidence under Order 41 Rule 27 at exhibit 15 afresh in the light of the observations made herein above after hearing the parties in accordance with law. (vi) The parties are directed to appear before the learned Lower Appellate Court on 18.11.2013 at 10.00 a.m. (vii) The Appeal and the Cross objections are disposed of accordingly. Ordered accordingly.