Partly allowed

Tipusaheb G.Pinjari v. Sardar Balu Mujawar and Anr.

Bombay HC1 Apr 2014SA/287/1994

Case brief

AI extract

What is this about?

In this second appeal, the High Court examined whether the District Judge erred in applying Order 41 Rule 23 CPC without detailed evidence discussion regarding defendant status as tenants. The Court set aside the order and remanded the suit for fresh trial, while maintaining the dismissal of the mortgage redemption claim.

What did the court decide?

The impugned order applied Order 41 Rule 23 CPC is set aside, suit restored to file for fresh trial, and maintain dismissal on redemption of mortgage.

Tipusaheb G.Pinjari Vs Sardar Balu Mujawar and Anr. — Property and Title | Bombay HC (2014)

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13.sa.287.94

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 287 OF 1994 WITH CIVIL APPLICATION NO. 1998 OF 1994

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Tipusaheb Gudusaheb Pinjari

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.. Appellant

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Vs.

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Sardar Balu Mujawar

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Maruti Dattu Patil

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.. Respondents

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Mr.N.J.Patil, Advocate for the appellant. Mr.M.L.Patil, Advocate for the Respondents.

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CORAM : R.G.KETKAR, J. DATE : 01^st April, 2014

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P.C. :

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. Heard Mr.N.J.Patil, learned Counsel for the appellant and

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Mr. M.L.Patil, learned Counsel for Respondent No.2 Maruti Dattu Patil, at length.

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Office remark shows that by order dated 01/04/2002 in C.A.No. 548 of 1995, second appeal is dismissed against respondent

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No.1Sardar Balu Mujawar. The appellant has instituted suit for redemption of mortgage executed by his mother Rajamma Pinjari in favour of respondent No.1 defendant No.1 Sardar Balu Mujawar, after accepting Rs.700/ or any other amount and for recovering possession from them. The parties shall hereinafter be referred as per

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their status in the trial Court.

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Second appeal was heard for admission on 12/04/1994 and following order was passed

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“Notice before admission to respondents, returnable after 2 weeks. Prima facie, it appears that after allowing the amendment, the matter ought to have been remanded.”

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After hearing the learned Counsel appearing for the

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parties, appeal is admitting on the following substantial question of law.

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“Whether the learned District Judge ought to have remanded the matter to the trial Court, particularly when he allowed the application at Exhibit 18 filed by the appellantplaintiff for amendment of the plaint ?”

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The learned Counsel appearing for the parties were heard on this question of law. As noted earlier, appellant had instituted suit for redemption of the mortgage. The Courts below dismissed the suit on the ground that the mortgage deed is not a registered instrument. It is not in dispute that aggrieved by decision of the trial Court, the plaintiff preferred appeal before the District Court. During the pendency of the appeal, the plaintiff filed application at Exhibit 18 for amending the plaint. It is also not in dispute that the said application was allowed.

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Mr.N.J.Patil invited my attention to the discussion of the District Court from paragraphs 7 to 11 and submitted that the learned District Judge upheld the findings of the trial Court that the suit for redemption of mortgage on the basis of the unregistered instrument is

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liable to be dismissed. The learned District Judge thereafter proceeded to consider the prayer made by the plaintiff by amending the words to the following effect:

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“as his suit for redemption of mortgage is dismissed for want of unregistered mortgage deed, therefore, he is entitled for possession.”

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The learned District Judge considered the submissions of the defendants that they are the tenants in the suit premises and observed that whether they are tenants or not needs detailed investigation and evidence of specific character is required and for that purpose, evidence is already available on record. He, therefore, applied provisions of section 41 Rule 23 of Code of Civil Procedure, 1908 (for short 'C.P.C.') and came to the conclusion that there is no need to remand the matter to the trial Court for fresh trial.

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As noted earlier, the learned District Judge has allowed

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the application for amendment, thereby permitting the plaintiff to incorporate the prayer for possession of the suit land. The question is whether the defendants are tenants or not and that issue could have been agitated subject to permitting the parties to lead additional evidence. In my opinion, the learned District Judge committed error in applying provisions of Order 41 Rule 23 of C.P.C. particularly when he has not discussed evidence in detail in that regard. The appropriate course in such an event, would have been to set aside trial Court's order and remand the case for the fresh trial before the learned trial

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Judge. In view thereof, the impugned order cannot be sustained and the same is liable to be set aside and the suit deserves to be restored to the file.

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As noted earlier, the second appeal against respondent No.1 original defendant No.1 is already dismissed. In view thereof, Mr.N.J.Patil seeks permission to delete the defendant No.1 from Regular Civil Suit No. 477 of 1982. Liberty as prayed for is granted at the risk of the plaintiff.

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The appeal is disposed of in the following terms.

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i) The impugned judgment and decree passed by the Courts below to the extent of the dismissing the suit for redemption of the mortgage is maintained.

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ii) By way of abundant caution, it is clarified that the suit will proceed only against respondent No.2defendant No.2 for recovery of possession.

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Respondent No.2 – defendant No.2 is permitted to file additional written statement within 90 days from today.

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After receipt of writ of this Court, the learned trial Judge

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is requested to decide the suit within one year from the date of the appearance of the parties.

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Second appeal is allowed in the aforesaid terms with no order as to costs.

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(R.G.KETKAR)

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Tipusaheb G.Pinjari v. Sardar Balu Mujawar and Anr.

Case brief

What is this about?

What did the court decide?

Tipusaheb G.Pinjari v. Sardar Balu Mujawar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Parties & counsel

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