Quashed

Narendra Hari Patil v. Moreshwar Hari Patil

Bombay HC18 Jun 2013SA/383/2012

Case brief

AI extract

What is this about?

In a civil appeal concerning partition and injunction, the High Court held the District Judge acted unjustifiably for dismissing an appeal without discussing oral evidence of the plaintiff's witnesses. Consequently, the impugned judgment was quashed, and the matter restored to the District Judge for disposal.

What did the court decide?

The judgment and decree dated 30/07/2011 are quashed; the appeal is restored to the file of the District Judge for fresh disposal.

Narendra Hari Patil Vs Moreshwar Hari Patil — Partition | Bombay HC (2013)

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909.sa.383.12

ingale

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 383 OF 2012

Narendra Hari Patil

.. Appellant

Vs.

Moreshwar Hari Patil .. Respondent

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Mr. Subhash Jha i/b Law Global, for appellant. Mr. Sandesh Patil, for respondent No.1.

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CORAM : R.G.KETKAR, J. DATE : 18^th June, 2013

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P.C. :

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. Heard Mr.Subhash Jha, learned Counsel for appellant and Mr.Sandesh Patil, learned Counsel for respondent No.1 at length.

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By this appeal under section 100 of the Code of Civil Procedure, 1908 (for short C.P.C.), the original plaintiff has challenged the judgment and decree dated 27/02/2007 passed by Civil Judge Junior Division, Wada, Thane in Regular Civil Suit No. 40 of 2001 as also judgment and decree dated 30/07/2011 passed by the learned Ad-hoc. District Judge-V and Assistant-Sessions Judge, Thane in Civil Appeal No.75 of 2007. By these orders, the Courts below dismissed the suit instituted by appellant for partition and for perpetual injunction.

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In support of this appeal, Mr.Jha raised various

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909.sa.383.12

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contentions. He submitted that on behalf of plaintiff, he examined himself at Exhibit 31 and 4 other witnesses namely Chandrakala at Exhibit 58, Keshri Patil at Exhibit 72, Sandhya and Umakant at Exhibit Nos. 60 & 76 respectively, as also he had produced documentary evidence on record. However, the learned District Judge has not at all considered oral evidence of these witnesses. He submitted that the learned District Judge has recorded the conclusions without considering the evidence of the plaintiff's witnesses.

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On the other hand, Mr.Patil submitted that the learned District Judge after considering the evidence of plaintiff's witnesses has recorded conclusion and therefore, no substantial of law arises in this appeal. With the assistance of the learned Counsel appearing for the parties, I have gone through the judgment of the learned District Judge. After going through the judgment, I am satisfied that the appeal raises following substantial question of law.

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Whether the learned District Judge was justified in dismissing the appeal without considering the evidence of plaintiff's witnesses, particularly so when Appellate Court is the last fact finding Court ?

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Admit on the above substantial question of law.

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Mr.Patil waives service on behalf of respondent No.1.

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At the request and with the consent of the learned Counsel appearing for the parties, appeal is taken up for final hearing forthwith. The learned Counsel for the parties made detailed

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909.sa.383.12

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submissions on the question of law that was formulated.

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As noted earlier, after perusal of the judgment of the learned District Judge, it is manifested that the learned District judge has not at all discussed oral evidence of the plaintiff's witnesses referred hereinabove. In paragraph Nos. 26 & 28 of his judgment, the learned District judge records that the witnesses were examined by the plaintiff. In paragraph 29 however he records the conclusion that the evidence laid down on behalf of the plaintiff cannot be said to be sufficient to hold that the property is owned by plaintiff and defendant, for the reason that the sale deed was executed, subsequently on 23/03/1995 in favour of the defendant only and it is registered sale deed. Perusal of the judgment of the learned District Judge shows that without discussing the evidence of the plaintiff's witness, the learned District Judge has dismissed the appeal preferred by the plaintiff. In my opinion, the learned District Judge was not justified in deciding the appeal in such a manner being the last fact finding Court.

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In view thereof, appeal succeeds. The impugned judgment and decree passed by the learned District judge is quashed and set aside. The appeal is restored to the file of the learned District Judge. The learned Counsel appearing for the parties state that the parties will appear before the learned District judge on 01/07/2013 and for that purpose, notice need not be issued to the parties. The statement

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909.sa.383.12

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made by the learned Counsel for the parties is recorded. They further agree that parties will extend full co-operation for early disposal of the appeal. In view of above, appeal is disposed of on following points.

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i) The judgment and decree dated 30/07/2011 passed by the learned Ad-hoc.District Judge-V & Assistant-Sessions Judge, Thane, in Civil Appeal No. 75 of 2007 is quashed and set aside..

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ii) Civil Appeal No. 75 of 2007 is restored to the file of learned Adhoc.District Judge-V, Thane.

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iii) The parties agree that they will appear before the learned District Judge on 01/07/2013 and for that purpose, they waive the notice.

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iv) The parties further agree that they will extend full co-operation for early disposal of the appeal.

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v) Having regard to the fact that the appeal is of year 2007, the learned District Judge is requested to decide the appeal on the basis of the evidence already on record within 3 months from the date of the appearance of the parties.

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vi) It is expressly made clear that this Court has not examined merits of the appeal and all the contentions in that regard are expressly kept open.

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(R. G. KETKAR, J.)

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Narendra Hari Patil v. Moreshwar Hari Patil

Case brief

What is this about?

What did the court decide?

Narendra Hari Patil v. Moreshwar Hari Patil

Case brief

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