Krishnat Jagannath Bhosale and Others vs Prakash Sadashiv Chavan

Anoop V. Mohta, J.—Appellants-original Defendants being aggrieved by order dated 13 July 2010, passed by the learned Extra Jt. Ad-hoc District Judge, Satara thereby Regular Civil Appeal is partly allowed filed by the Plaintiff-Respondent. By the impugned order, judgment and decree passed by the Lower Court is quashed and set aside and the matter is remanded to the Civil Judge, Jr. Division, Phaltan with direction to give opportunity to both parties for leading oral and documentary evidence in the light of observations made in the order. Once the learned Trial Judge, after considering all the documents/material placed on record and by giving an opportunity to the parties and by proper reasons after dealing with respective issues, dismissed the suit, there is no ground to remand the matter by reopening the trial itself, as no exceptional case is made out to remand the matter in such fashion are the contentions of the Appellants. The learned counsel appearing for the Appellants has read and referred the judgments of the Supreme Court as well as of this Court viz. (1) P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., , (2) J. Lingaiah and Others Vs. G. Hanumanthappa and Others, , (3) Sk. Ibrahim and Others Vs. Sk. Mehmood, , (4) Patel Sureshbhai Jashbhai Vs. Patel Satabhai Mathurbhai, and (5) Sayed Akbar Vs. Dhondiba Namdeo Bhosale 2011 (1) ALL MR 791, and basically contended that in the present facts and circumstances of the case, there is no exceptional case to remand the matter practically for a retrial. It is not the case that the Plaintiffs never got any opportunity and/or hearing in the matter during the trial. The learned Appellate Court should have instead decided the matter in accordance with law.

Striking features in the matter is that there was no such prayer and/or application made by the Plaintiff to remand the matter. The learned Judge, however, by overlooking the material placed on record and without observing the position of law that there is an extra exceptional case, just by observing that the property in dispute be measured and only after measurement, the property can be identified. It is responsibility of the Plaintiff to prefer an application for measurement or may file application in the suit for measurement and identification of the property in dispute. This situation and the procedure well within the knowledge of the Plaintiff even at the relevant time. No such steps taken nor such objections/application filed. Before the Appellate Court also no such ground raised. Therefore, if Plaintiff himself failed to prove his own case and failed to identify his property, the consequence should be dismissal of the suit as done in the present case by the Trial court. The Plaintiff fails to prove his own case, the dismissal of the suit therefore cannot be faulted with. However, order of remand in this background certainly cause injustice and hardship to the Defendants and this would amount to reopening of trial itself. Hence, the order of remand required to be quashed and set aside.

In view of above factual and the legal position, impugned order dated 13 July 2010 is quashed and set aside, specifically order of remand. However, the learned District Judge and/or appropriate Court to hear the Appeal (Appeal No. 260 of 2004) afresh by giving an opportunity to the parties. Appeal from Order is disposed of accordingly. All points are kept open. No costs.