Dismissed

Smt. Meerabai Tulshiram Nerpager v. Smt. Sisnilabai Mangeshrao Sonde and Ors.

Bombay HC6 Dec 2012WP/269/2007

Case brief

AI extract

What is this about?

The Single Judge examined a Writ Petition filed by Meerabai Tulshiram Nerpagar assailing a District Court order remanding a civil suit to lead evidence. The Court held that while an appeal was the correct remedy, the Writ Petition would be considered on merits due to the age of the matter.

What did the court decide?

The Writ Petition is dismissed and no costs are awarded.

Smt. Meerabai Tulshiram Nerpager Vs Smt. Sisnilabai… — Landlord and Tenant | Bombay HC (2012)

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1 W.P. 269.2007

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 269 OF 2007

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Meerabai Tulshiram Nerpagar V/s Sisnilabai Mangeshrao Sonde & Ors.

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 06/12/2012.

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Mr. P.S.Shendurnikar, Advocate for the Petitioner.

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PER COURT :

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The petitioner assails the Judgment and order passed by the District Court remanding the matter to the trial Court.

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Mr. Shendurnikar, the learned counsel for the petitioner states that the appellate Court could not have remanded the matter for allowing the plaintiff to lead the evidence of the photographer. After the amendment of the year 1976, the scope of the remand is limited. The remand can only be made as per the circumstances detailed in Order XLI Rule 23-A of the Code of Civil Procedure [ For short, ' C.P.C. ' ]. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of P.Purushottam Reddy & Anr. V/s

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2 W.P. 269.2007

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Pratap Steels Ltd. reported in (2002) 2 Supreme Court Cases

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- 686 .

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According to the learned counsel, the trial Court has dismissed the Suit of the plaintiff to the extent of eviction and had decreed it to the limited extent of rent. In an Appeal filed by the plaintiff, the appellate Court had set aside the finding of the trial Court regarding the rent and came to the conclusion that the agreed rent is only ` 40/- [ Rupees Forty only ] per month. The lower appellate Court has remanded the matter only for the purpose of giving an opportunity to the plaintiff to lead evidence of the photographer. According to the learned counsel, the Examination-in-Chief of the photographer was led by the plaintiff. But, subsequently he did not turn up for cross examination and in that circumstance the evidence of the photographer is not considered. It is not the case that no opportunity was given to the plaintiff to adduce evidence. According to the learned counsel, for the purpose of additional evidence and the additional plea the matter could not have been remanded back. The learned counsel relies on the Judgment of the Apex Court in the case of Kattukandi Edathil Krishnan & Anr. V/s Kattukandi Edathil Valsan & Ors. reported in (2006) 9 Supreme Court Casesw - 166 .

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With the assistance of the learned counsel, I have gone

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3 W.P. 269.2007

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through the order.

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In fact, against the order of remand, the Appeal from Order lies. It appears that the petitioner had earlier filed Appeal from Order, thereafter it was converted in Writ Petition. The Writ Petition would not be maintainable. However, as the matter is of the year 2007, I have considered it on merits.

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No doubt, the order of remand is governed by the provisions of Order XLI Rule 23, 23-A and 25 of the C.P.C. Rule 23-A of the C.P.C. allows the appellate Court to remand the matter in case decree is reversed in Appeal and " retrial is considered necessary ". The said expression would have a wide import. The same would be based on the principle of " Exdebito jestati ".

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The Appellate Court has found that the ground for eviction was that the petitioner has carried out alterations and for the said purpose, the photographer was examined. The photographs are already on record, but the photographer did not turn up for cross examination. It was found by the Court that the evidence of the photographer is vital and necessary to adjudicate the matter and in light of that, an opportunity was granted. It is not the case of the additional evidence is to be led or additional plea is to be raised.

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4 W.P. 269.2007

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More over the order of remand is passed on 04/10/2005. Even on the said ground, it would be inappropriate to interfere with the order at the fag end of 2012.

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In light of the above, the Writ Petition is dismissed. No costs.

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[ S.V. GANGAPURWALA, J. ]

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KNP/W.P. 269.2007

Smt. Meerabai Tulshiram Nerpager v. Smt. Sisnilabai Mangeshrao Sonde and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Meerabai Tulshiram Nerpager v. Smt. Sisnilabai Mangeshrao Sonde and Ors.

Case brief

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What did the court decide?

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