Partly allowed

Sidharam Mallappa Unnad v. Abhimanyu Basappa Rabba

Bombay HC26 Mar 2024SA/111/2024

Case brief

AI extract

What is this about?

The High Court set aside a judgment by the First Appellate Court for copy-pasting Trial Court findings without independent reasoning. The appeal was remanded to the District Court for fresh hearing by a different judge, and an interim injunction continued.

What did the court decide?

The impugned decree dated 4 December 2023 is set aside. The appeal is remanded to the District Court, Solapur, for a fresh hearing by another judge. Interim injunction continues.

Sidharam Mallappa Unnad Vs Abhimanyu Basappa… — Civil Procedure and Limitation | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.111 OF 2024
WITH
INTERIM APPLICATION NO.1664 OF 2024
IN

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SECOND APPEAL NO.111 OF 2024

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Sidharam Mallappa Unnad....Appellant/Applicant
V/S
Abhimanyu Basappa Rabba....Respondent

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Mr. Pradeep Salgarfor the Appellant/Applicant.
Mr. Hrishikesh S.Shindefor Respondent.

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CORAM: SANDEEP V. MARNE, J. DATE : 26 MARCH 2024.

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P.C.:

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1By this Appeal, Appellant had challenged judgment and decree dated 4
December 2023 passed by Ad hoc District Judge-1, Solapur in Regular Civil
Appeal No.70 of 2021 by which the learned Judge of the First Appellate
Court has proceeded to dismiss Regular Civil Appeal No.70 of 2021 and has
confirmed the decree passed by the Trial Court.

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2When the Appeal was taken up on 23 February 2024 this Court noticed
a disturbing aspect where the learned Judge of the First Appellate Court has
literally copied various findings of the Trial Court and has pasted the same in
her order. The order passed by this Court on 23 February 2024 reads thus:

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Page No. 1 of 5 26 March 2024

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katkam

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“1. Heard Mr. Salgar, the learned counsel appearing for the Appellant. 2. Apart from perversity in the findings recorded by the Trial Court and the First Appellate Court in the impugned judgments, Mr. Salgar would point out that First Appellate Court has literally copy-pasted various findings of the Trial Court. He would demonstrate the same as follows:

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	`Findings of Trial Court`		`Findings of First Appellate` `Court`
`Para` `No.`		`Para` `No.`
`19`	`The defendant on his behalf` `has examined D.` `W.2 Bandu` `Gaikwad. He deposed that` `he knows the plaintiff and` `defendant. He knows that` `plaintiff is a money lender` `and he used to give money` `to the needy persons. He` `used to execute agreements` `for repayment of such` `amounts. He further` `deposed that the defendant` `has taken Rs.40,000/- from` `the grandfather of plaintiff` `at the interest rate of 20%` `per month.`	`f` `f` `f` `13`	`The defendant on his behalf` `has examined Bandu Gaikwad` `(DW2). He deposed that,` `knows that plaintiff is money` `lender and he used to give` `money to the needy persons.` `He used to execute agreement` `for repayment of such` `amounts. He further deposed` `that, the defendant has taken` `Rs.40,000/- from the` `grandfather of plaintiff at the` `rate of interest of 20% per` `month.`
`20`	`the first meeting was held` `on 21.01.2015. On that day` `he paid Rs.1,20,000/-. The` `document at Exh.21 i.c. an` `agreement to sale has been` `executed on 05.10.2015 i.e` `after 10 months. In between` `the Plaintiff paid` `Rs.3,40,000/- by cash`	`i` `,` `.` `.` `20`	`the first meeting was held on` `21.01.2015. On that day, he` `paid Rs.1,20,000/- and` `document at Exh.21 ie. an` `agreement to sale has been` `executed on 05.10.2015 after` `10 months. He paid` `Rs.3.40,000/- by cash` `whereas defendant stated that`
	`Whereas, as per the`		`he obtained Rs.40,000/- by`

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Page No. 2 of 5 26 March 2024

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katkam

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evidence of defendant, he
has taken Rs.40,000/- from
the cousin grandfather of
the of plaintiff at the
interest rate of 20% per
month and he was paying
Rs.8,000/- per month as
interest.

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cousin grand-father of the
plaintiff with interest @ 20%
per month and paying
Rs.8,000/- per mouth as a
interest.

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16 the plaintiff has admitted in13 his cross that Sidramappa Unnad is brother of his grandfather. It means Sidramappa Unnad is cousin grandfather of plaintiff.

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It appears that in the cross-
examination, the plaintiff has
admitted that Sidramappa
Unnad is brother of his
grandfather. It means that
Sidramappa Unnad is cousin
grandfather of plaintiff.

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24 this transaction is of the24 year 2015 and how and why such amount has been paid without any single document of payment of such amount in this digital era, is a question."

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this transaction is of the year
2015 and how and why such
amount has been paid without
any single document of
payment of such amount in
this digital era, is a question.

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27Therefore, no question of16Therefore, no question of
ready and willingness toready and willingness to
perform the part of contractperform the part of contract
arose. Moreover, thearose. The plaintiff has
plaintiff has admitted in hisadmitted that, he has his cross
cross that, he has not takenthat, he has not taken
possession of the suitpossession of the suit
property nor he has paidproperty nor paid any taxes
any taxes of the suitthough it is pleaded in the
property though it isplaint.
pleaded in the plaint.

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Page No. 3 of 5 26 March 2024

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katkam

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3. The above findings are some of the illustrations and comparison of the
orders passed by the Trial Court and the First Appellate Court shows that
the First Appellate Court has mostly copied the findings recorded by the
Trial Court. Prima-facie, the order passed by the First Appellate Court does
not show any independent application of mind.

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4. My attention is invited to another order passed by the same learned District Judge, which is set aside by this Court only on the ground of copying the findings of the trial court.

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5. Issue notice to the Respondent, returnable on 18th March, 2024. 6. In addition to Court notice, Applicant is permitted to serve the Respondent by private notice and file Affidavit of Service before the next date of hearing.

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7. List the Appeal 'High on Board' on 18th March 2024.

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8. Till the next date of hearing, the Respondent is restrained from creating any third-party rights in respect of the suit property."

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3Faced with the above situation, the learned counsel appearing for the
Respondent, after taking instructions from his client, fairly submits that the
Respondent is willing to have the impugned decree dated 4 December 2023
passed by the First Appellate Court set aside and Regular Civil Appeal No.70
of 2021 can be remanded for being decided afresh. The learned counsel
appearing for the Appellant is agreeable to this course of action.

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4Accordingly by consent of the learned counsel appearing for both the
parties, the judgment and order dated 4 December 2023 passed by the
District Judge-1, Solapur in Regular Civil Appeal No.70 of 2021 is set aside.
Regular Civil Appeal No.70 of 2021 shall stand remanded before the District
Court, Solapur for being decided afresh.

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katkam Page No. 4 of 5 26 March 2024

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5Considering the disturbing factor of the learned Presiding Officer has
virtually copy-pasted the findings recorded by the Trial Court and also the fact
similar course of action was adopted by her in another case, the learned
Principal District Judge, Solapur shall assign Regular Civil Appeal No.70 of
2021 to another District Judge than the one who has passed the judgment and
order dated 4 December 2023.

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6The learned District Judge who would be assigned Regular Civil Appeal
No.70 of 2021 shall proceed to decide the same on his own merits without
being influenced by any of the observations made in any of the orders passed
in the present Appeal.

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7Appellant shall be at liberty to file an application before the District
Judge to whom the Appeal would be assigned, seeking interim relief. Till such
application is decided, the ad-interim relief granted by this Court by order
dated 23 February 2024 shall continue to operate.

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8 With the above directions, the Second Appeal is disposed of.

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9 In view of the disposal of the Second Appeal, the Interim Application does not survive and the same is accordingly disposed of.

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(SANDEEP V. MARNE, J.)

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Digitally signed by SUDARSHANRAJALINGAM SUDARSHANRAJALINGAMKATKAM KATKAM Date: 2024.03.28 17:21:04 +0530

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Page No. 5 of 5 26 March 2024

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katkam

Sidharam Mallappa Unnad v. Abhimanyu Basappa Rabba

Case brief

What is this about?

What did the court decide?

Sidharam Mallappa Unnad v. Abhimanyu Basappa Rabba

Case brief

What is this about?

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