Allowed

Bansidhar Laxminaryan Mistry ( Jangid ) v. Fulchand Laxminaryan Jangid and Ors.

Bombay HC22 Oct 2013AO/16/2008

Case brief

AI extract

What is this about?

The High Court allowed an appeal from an order remanding a civil appeal. It set aside the remand order, holding that the appellate court could decide evidentiary and valuation issues on merit without remand, quashing the lower court's direction.

What did the court decide?

The appeal was allowed; the Adhoc District Judge's order remanding the appeal was quashed and set aside; directions issued for the appellate court to hear and decide the appeal on merit.

Bansidhar Laxminaryan Mistry ( Jangid ) Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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(1) AO. 16-2008

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

APPEAL FROM ORDER NO. 16 OF 2008 AND

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CIVIL APPLICATION NO. 2508 OF 2008

¶5

Bansidhar S/o Laxminarayan Mistry (Jangid)
Age : 52 years, Occu:- Carpenter
R/o Shahada, Tq. Shahada,

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Dist. Nandurbar

¶7

 Appellant
 (Orig. Plaintiff)

¶8

Versus

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1] Fulchand S/o Laxminarayan Jangid
 Age : 55 years, Occu.: Carpenter,
 R/o Shahada, Tq. Shahada,

¶10

 Dist. Nandurbar

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2] Dattu S/o Tumdu Tamboli,
 Age : 47 years, Occu.: Cycle Repair
 R/o Shahada Tq. Shahada,
 Dist. Nandurbar

¶12

3] Gandhi Nagar Cooperative Society
 Ltd., Shahada, through its
 Chairman [Died] Respondents
 (Orig. Defendant nos.1 to 3)

¶13

Mr. H.V. Tungar, Advocate h/f. Mr. C.R. Deshpande, Advocate for
Appellant.

¶14

Mr. S.V. Natu, Advocate for respondent no.1.
None present for respondent no.2 though served.
Respondent no.3-dead.

¶15

CORAM : M. T. JOSHI, J.
DATED : 22/10/2013

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ORAL ORDER:

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1. Heard both sides.

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2.Aggrieved by the judgment of the Adhoc

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(2) AO. 16-2008

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District Judge-2, Shahada, Dist. Nandurbar directing
the remand of the case i.e. Regular Civil Suit no. 21
of 1996 for fresh decision from Civil Judge Senior
Division, Shahada, the present Appeal is preferred by
the original plaintiff.

¶21

3.The plaintiff succeeded in the suit.

¶22

Therefore, one of the original defendants, namely,
Fulchand filed Civil Appeal no. 32 of 2005. The
grounds on which the learned Adhoc District Judge
directed for remand are as under:-

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i) That though the defendant witness has
deposed that the plaintiff had put signature
on the document in his presence, the learned
trial Court did not give exhibit to it.

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ii) The handwriting expert on whose opinion
the plaintiff relied was not examined and
therefore his report would not go
automatically in the evidence. Therefore
the handwriting expert should be examined by
the plaintiff.

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iii) Though the plaintiff feels that
certain documents were fabricated and during
that period he was in Rajasthan, the
evidence was not placed by the plaintiff on
this point.

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(3) AO. 16-2008

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iv) For arriving at correct valuation of
the property, description of the property is
required to be there in the plaint as the
plaintiff projected the suit plot as an
agricultural plot, however, the same
according to the learned Adhoc District
Judge did not appear to be correct one.

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4.Aggrieved by these directions, the original
plaintiff is before this Court.

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5.Learned counsel for the appellant-plaintiff
Mr. Tungar h/f. Mr. Deshpande submits that the
learned appellate Court ought to have decided the
appeal on merit of the case as the appellant-
plaintiff does not want remand of the matter for
placing the evidence of handwriting expert or placing

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additional evidence.Learned counsel for the

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appellant-plaintiff further submits that the
appellant-plaintiff does not want to lead any
evidence either of hand-writing expert or as regards

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the other evidence that the plaintiff was away in
Rajasthan etc. As regards the valuation, he submits

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that the appellate Court itself can take the decision
as regards the valuation of the suit and the question

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(4) AO. 16-2008

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as to whether the documents placed by the defendants
is proved by the defendant witness, the appellate
Court itself can take a decision and therefore there
is no need of remand.

¶36

6.Mr. Natu, learned counsel for the contesting
respondents submits that if the plaintiff does not
want to lead the evidence on the suggestions made by
the learned Judge then the necessary orders may be
passed.

¶37

7.Having considered the rival submissions, in
my view, the direction to remand the matter was not
proper. It was not the grievance of the plaintiff
who was the respondent in the appeal that no proper
opportunity of leading the evidence was given to him
by the trial Judge. As regards the exhibition of the
document, in view of the examination of the witness
regarding the document, though the same was not
exhibited the appellate Court can very well take
decision in this respect to find out as to whether
the document is proved and mere technicality of
giving exhibit number remained there or not. Similar
is the case regarding the question of correct

¶38

(5) AO. 16-2008

¶39

valuation of the property. On the basis of the
available material if any objection was raised in the
trial Court and was continued in the appellate Court

¶40

in this regard, the same also can be dealt with by
the appellate Court.

¶41

8.The judgment of the learned appellate Court
thus suffers from material irregularity. The remand
should not have been ordered without giving serious
thought to it unless it is found that there is no
other alternative but to remand the case.

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9.In view of this matter, the following

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order:-

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I)Appeal from Order is allowed without any

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order as to costs.

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II)The judgment of the Adhoc District Judge-2,
Shahada is hereby quashed and set aside. Instead the
appellate Court is directed to hear the appeal on
merit and decide the same according to due procedure
of law.

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(6)

¶48

AO. 16-2008

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III)Parties to appear before the learned Adhoc
District Judge-2, Shahada on 29th November, 2013.

¶50

9.Consequently, Civil Application no. 2508 of
2008 also stands disposed of.

¶51

 [M. T. JOSHI, J.]

¶52

arp/

Bansidhar Laxminaryan Mistry ( Jangid ) v. Fulchand Laxminaryan Jangid and Ors.

Case brief

What is this about?

What did the court decide?

Bansidhar Laxminaryan Mistry ( Jangid ) v. Fulchand Laxminaryan Jangid and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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