Quashed

M/S Bhartiya Motors Dhule through Partner v. Zilla Parishad Dhule Th Chief Executive Officer Zp Dhule and Anr.

Bombay HC27 Jun 2011AO/97/2010

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad allowed an appeal from an order remanding a civil suit. Quashing the remand order passed by the lower appellate court for failing to record a written statement, the High Court held that the appellate court had the power to seek a fresh written statement under Section 107 CPC and ordered the lower court to decide the merits within six months.

What did the court decide?

Impugned order dated 4.3.2010 in Civil Appeal No.99/2007 quashed and set aside. Civil Appeal No.99/2007 restored to original file for disposal within six months.

M/S Bhartiya Motors Dhule through Partner Vs Zilla… — Execution and Attachment | Bombay HC (2011)

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Appeal from Order No.97/2010

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

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BENCH AT AURANGABAD

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APPEAL FROM ORDER NO.97 OF 2010 WITH CIVIL APPLICATION NO.2667/2011 WITH CIVIL APPLICATION NO.5276 OF 2011

M/s Bhartiya Motors

... APPELLANT

VERSUS

Zilla Parishad, Dhule & anr. ... RESPONDENTS

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Shri A.S. Sawant, Advocate for appellant Shri D.S. Bagul, Advocate for respondents

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CORAM : S.S. SHINDE, J.

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DATED : 27th June, 2011.

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PER COURT :

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This Appeal from Order takes exception to the order dated 4.3.2010, passed by the Adhoc District Judge-1, Dhule in Civil Appeal No.99/2007.

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The appellant herein filed Civil Suit for recovery. Same was decreed. Against that, the respondents preferred appeal. In appeal, the appellate Court remanded the matter back to the trial Court, mainly on the ground that though the original defendant No.1 did not file written statement, the trial Court did not pass the order

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Appeal from Order No.97/2010

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of No W.S., and also to give the opportunity to defendant No.1 to file the written statement.

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It is the contention of the learned counsel for the appellant that the original defendant Nos.1 and 2 are the officers of the Zilla Parishad, Dhule. The written statement was also filed by the original defendant No.2. He further submits that, even purshis was placed on record by the original defendant No.1, stating therein that he wishes to adopt the same contentions which are raised by defendant No.2. Therefore, according to the counsel for the appellant, there was no need for remand of the matter.

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On the other hand, learned counsel for the respondents submits that, when the No W.S. order was passed, the appellate Court, in the interest of justice, felt it necessary to remand the matter back to the trial Court. It is also argued that the original defendant No.1 did not file the written statemnet and suit proceeded in absence of the written statement. Therefore, the appellate Court taken into consideration this fact, to give fair opportunity to the defendant No.1, remanded the matter back to the trial Court. Therefore, this Court may not entertain the appeal.

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I have given due consideration to the rival submissions. In my opinion, clause (2) of Section 107 of the Civil Procedure

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Appeal from Order No.97/2010

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Court empowers the District Court like the Court of original jurisdiction, to record the evidence, even to accept the Written Statement afresh and then decide the matter. The appeal is a continuation of suit. Therefore, even though the order was not passed by the trial Court i.e. the No W.S. order, in that case also if the appellate Court felt it necessary, should have asked the original defendant No.1 to file the written statement. However, the appellate Court has failed in its duties. Therefore, in my opinion, such remand order was unnecessary. Hence, the impugned judgment and order dated 4.3.2010, passed by the Adhoc District Judge-1, Dhule in Civil Appeal No.99/2007 is quashed and set aside. Civil Appeal No.99/2007 is restored to its original file. The appellate Court, if necessary, can allow the original defendant No.1 to place on record the written statement subject to contentions of the respondents in appeal. Since the Appeal from Order is pending from 2010 and Civil Appeal is decided in 2007, it would be in the interest of justice that hearing of the Civil Appeal No.99/2007 is expedited by the Adhoc District Judge, Dhule. Accordingly, the concerned Court should decide the Civil Appeal No.99/2007 as expeditiously as possible, but within six months from today. The parties agree to appear before the lower appellate Court on 13.7.2011.

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Appeal from Order No.97/2010

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Appeal from Order and Civil Applications stand

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disposed of.

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( S.S. SHINDE, J. )

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fmp/ao97.10

M/S Bhartiya Motors Dhule through Partner v. Zilla Parishad Dhule Th Chief Executive Officer Zp Dhule and Anr.

Case brief

What is this about?

What did the court decide?

M/S Bhartiya Motors Dhule through Partner v. Zilla Parishad Dhule Th Chief Executive Officer Zp Dhule and Anr.

Case brief

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What did the court decide?

What the court decided

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