Dismissed

Tukaram Bala Patil v. Ganpati Bala Patil and Others

Bombay HC21 Aug 2008AO/751/2008

Case brief

AI extract

What is this about?

The High Court upheld the first Appellate Court's order remanding a suit for specific performance to the trial court due to factual and legal errors, including passing a decree for entire land when prayer was only for half and non-framing of issues on legal necessity.

What did the court decide?

The appeal was dismissed; the first Appellate Court's order remanding the matter is upheld.

Tukaram Bala Patil Vs Ganpati Bala Patil and… — Contract and Commercial Disputes | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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APPEAL FROM ORDER NO. 751 OF 2008

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Tu karam Bala Patil . ......Appellant.

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versus

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Ganpati Bala Patil & ors....... Respondents.

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Mr. S.S. Patwardhan for the Appellant

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CORAM; A.P. DESHPANDE, J. DATED; 21ST AUGUST, 2008.

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P.C.:

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Heard Shri Patwardhan for the appellant. The judgment and decree passed by the first Appellant Court, remanding the matter for a denovo trial to the trial court has been challenged by filing this appeal. Perusal of the judgment of the Appellate Court reveals that the trial Court has committed serious errors of fact and law in as much as , though the Plaintiff had prayed for a decree in regard to half portion of the suit land, a decree has been passed in respect of the entire land. Not only a decree for specific performance has been granted, in addition a decree for refund of earnest money is also passed. The suit

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filed by the plaintiff was for specific performance of contract. The issues in regard to legal necessity and objections touching the provisions of fragmentation and consolidation were not even framed though cursorily dealt with, while dealing with other issues. In the opinion of the first Appellate Court, the judgment and decree has been found to be wholly unsustainable. Having found that prejudice has been caused to the Defendants against whom the decree was passed, by setting aside the judgment and decree, the matter has been remanded back to the trial Court. The learned counsel appearing for the Appellant submits that the first Appellate Court could have severed the unsustainable portions from the decree and could have maintained the decree.

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3. Perused the order passed by the first Appellate Court. The same goes to take a very possible view of the matter. The order setting aside the judgment and decree cannot be faulted as the same suffers from non application of mind and legal and factual errors. The learned counsel further submits that the suit is of the year 2001 and the remand would further protract the trial. The first Appellate Court has already expedited the trial which would be in the interest of the parties. No case is made out for interference in the order passed by the first Appellate Court. However having regard to the facts of the case, I hope and trust that the trial court would proceed to here the suit expeditiously and dispose of the same within a period of six

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months from today. It is made clear that the trial court shall decide the suit uninfluenced by the observations made by the first Appellate Court so also this Court. A.O. Stands disposed of.

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(A.P. DESHPANDE, J)

Tukaram Bala Patil v. Ganpati Bala Patil and Others

Case brief

What is this about?

What did the court decide?

Tukaram Bala Patil v. Ganpati Bala Patil and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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