Shri Sonu Kessu Gawade and Others vs Shri Murari Taru Gaude and Others

F.M. Reis, J.—Heard Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants and Shri R. Ramani, learned Counsel appearing for the respondents. The above appeal challenges the judgment and order passed by the Lower Appellate Court whereby the appeal preferred by the respondents was partly allowed and the matter was remanded to the Trial Judge to decide Regular Civil Suit No. 106/98 afresh in the light of the observations made in the impugned judgment.

Shri Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that though the learned counsel does not dispute that the respondents have been permitted to produce the earlier judgments and an additional issue is framed as to whether the suit filed by the appellants was barred by res-judicata nevertheless the learned Counsel has submitted that the learned Judge ought to have exercised its jurisdiction only under Order 41 Rule 25 of C.P.C and not set aside the judgment passed by the Trial Judge. The learned counsel further pointed out that without considering the correctness or otherwise of the findings arrived at by the learned Trial Judge, it was not incumbent upon the learned Judge to set aside the impugned judgment and direct the learned Trial Judge to decide the suit a fresh. The learned Counsel further pointed out that by such exercise, grave prejudice has occasioned to the appellants as the decree passed in their favour came to be set aside. The learned Counsel as such submitted that the impugned judgment passed by the Court below is in excess of jurisdiction and as such the same deserves to be quashed and set aside.

On the other hand, Shri R. Ramani, learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel pointed out that the findings in the earlier suits filed in respect of the suit property between the same parties are very much relevant for the purpose of deciding the suit filed by the appellants. The learned Counsel further pointed out that there is no error committed by the learned Judge in exercise of jurisdiction to direct the Trial Court to decide the suit afresh after setting aside the judgment and decree passed by the learned trial Judge. The learned Counsel further pointed out that there were findings arrived at in the earlier proceedings which have become final and as such the question of arriving at any contrary findings by the Trial Court in a subsequent proceedings does not arise at all. The learned Counsel as such submitted that there is no infirmity committed by the learned Judge whilst passing the impugned judgment and consequently the appeal deserves to be rejected.

Upon hearing the learned Counsels and on perusal of the records, it is not in dispute that during the pendency of the suit an application was filed by the respondents under Order 41 Rule 27 of C.P.C. whereby the judgments passed in the earlier proceedings were allowed to be produced. It is also to be noted that in view of the said documents an additional issue has been framed as to whether the proceedings filed by the appellants are barred by the principles of res-judicata. Consequently, considering that issue of res-judicata is a mixed question of law and fact, the learned Judge has rightly remanded the matter for deciding the suit afresh.

With regard to the contention of the learned Counsel appearing for the appellants to the effect that the learned Judge was not justified to set aside the judgment passed by the learned Trial Judge whilst remanding the matter to the learned Trial Court, I find that the said contention cannot be accepted. Once it is the contention of the respondents that some findings arrived at in the earlier proceedings have become final, which is otherwise disputed by the appellants, the findings arrived at by the learned Trial Judge whilst passing the judgment in the present proceedings would have to be re-appreciated in the light of the findings arrived at in the earlier proceedings. Whether such findings have become final or not is a matter which has to be decided by the learned Trial Judge after hearing the parties in accordance with law.

Be that as it may, the learned Judge whilst passing the impugned judgment has rightly come to the conclusion that the findings arrived at by the learned Trial Judge would have to be re-appreciated in the light of the findings arrived at in the earlier proceedings. Admittedly, the earlier judgment was not considered by the learned Trial Judge whilst disposing the suit filed by the appellants. Hence, I find that there is no error committed by the learned Judge whilst passing the impugned judgment and remanding the matter for deciding the suit afresh in accordance with law. Shri J. Mulgaonkar, the learned Counsel appearing for the appellants has relied upon the judgment of the Apex Court reported in 2008 (12) SCC 372 in the case of Bachahan Devi and Anr. V/s Nagar Nigam Gorakhpur and Anr. The said judgment is not applicable to the facts and circumstances of the present case. The findings arrived at by the learned Trial Judge in the present proceedings would have to be re-appreciated in the light of the findings arrived at in the earlier proceedings. Hence, considering the above, I find no merit in the above appeal and consequently the same stands dismissed.