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2021 Supreme(Bom) 763
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Vibha Kankanwadi, J.
Ramdas - Appellant
Versus
Kalawati - Respondent
Appeal From Order No. 12 of 2019, 13 of 2019, 22 of 2019, 23 of 2019; C.A. No. 2775 of 2019, 2798 of 2019, 3754 of 2019, 3755 of 2019
Decided On : 23-02-2021
R.S. Wani, Advocate, G.R. Syed, Advocate, H.V. Tungar, Advocate
The main legal point established in the judgment is that the first appellate court cannot allow amendment of pleadings and lead evidence when the party had not raised certain defenses in the lower court and had chosen not to lead evidence.
Headnote:
Appeals from Order - Civil Procedure - Order VI, Rule 17, Code of Civil Procedure - Syeda Rahimunnisa Vs. Malan Bi (Dead) by Legal Representatives and another, (2016) 10 SCC 315 - Shri Ajit Gaitonde and Anr. Vs. Smt. Ezilda Emiliana Cristina Pinto(since deceased), (2009) 3 AllMR 838 - C.N.Ramappa Gowda Vs. C.C.Chandregowda (Dead) Lrs and Anr., (2012) ALLSCR 1563
Fact of the Case:
The appeals arose from orders challenging the judgment and order passed in Regular Civil Appeals. The suits involved issues of ownership, possession, and tenancy of the suit land and house. The first appellate court remanded the suits with directions to allow the defendant to amend his pleadings and adduce evidence. The appellants contended that the remand was illegal and deserved to be set aside.
Finding of the Court:
The court found that the first appellate court had erred in allowing the defendant to amend his pleadings and lead evidence, as the defendant had not raised certain defenses in the lower court and had opted not to lead any evidence. The court held that the remand orders were illegal and set them aside, restoring the appeals to file for disposal on merits.
Issues: The issues involved the legality of the remand orders, the defendant's failure to lead evidence, and the applicability of the principles of amendment of pleadings under Order VI, Rule 17 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the first appellate court had exceeded its jurisdiction in allowing the defendant to amend his pleadings and lead evidence, especially when the defendant had not raised certain defenses in the lower court and had chosen not to lead evidence. The court also emphasized the importance of proper opportunity given to the parties to defend their case.
Final Decision: The appeals from orders were allowed, the judgments and orders passed by the first appellate court were set aside, and the appeals were restored to file for disposal on merits.
JUDGMENT
Vibha Kankanwadi, J. - All these Appeals from orders are almost between the same parties and involve common point and, therefore, they are being heard together and proposed to dispose of by a common judgment.
2. Appeal from Order No.12/2019 and Appeal from Order No.22/2019 challenge the judgment and order passed in Regular Civil Appeal No.22/2015 by learned District Judge-8, Beed on 14.12.2018. Appeal from Order No.12/2019 has been filed by original defendant Nos.3 and 5; whereas Appeal from Order No.22/2019 is filed by original plaintiff. Original plaintiff filed Regular Civil Suit No. 322/2005 before Joint Civil Judge, Junior Division, Ashti, District Beed for declaration of ownership and permanent injunction. Appeal from Order No. 13 of 2019 has been filed by original deft No.1, who was later on transposed as plaintiff in Regular Civil Suit No.95 of 2005, with original defendant No.3 and 4; whereas Appeal from Order No.23 of 2005 is filed by original defendant No. 5 in the same suit. Appeal from Order No.13/2019 and Appeal from Order No. 23/2019 challenge the judgment and order passed in Regular Civil Appeal No.21/2015 by learned District Judge-8, Beed on 14.12.2018. Parties are referred by their names for the sake of convenience and to avoid confusion.
3. It appears from all these Appeal from Orders that Dwarkabai Babasaheb Pokale, who was defendant No.6 in RCS No.322/2005, had filed RCS No.95/2005 for partition, separate possession and mesne profits as well as for declaration that the divorce obtained from Defendant No.5 by deceased Babasaheb is legal. Defendant No.5 is plaintiff in RCS No.322/2005. During pendency of the suit, Dwarkabai expired and in her RCS No.95/2005, original defendant No.1 therein, was transposed as plaintiff. Both the suits were tried before the Joint Civil Judge, Junior Division, Ashti, District Beed and they were disposed of by separate judgments by the same Judge on 31.12.2014. RCS No.322/2005 was decreed. The Kalawati and Ramdas were declared as owners of undivided 1/4th share each in the suit land. Defendant No.1 in RCS No. 322/2005 and deft. No.6 in RCS No.95/2005, viz. Shantaram was restrained from disturbing the possession of the plaintiffs over the suit land. In RCS No.95/2005 along with the transposed plaintiff, deft.Nos. 3 to 5 were declared as owners of 1/4th share each in the suit land as well as suit house. The partition was directed to be effected through precept to be sent to the Collector in respect of the agricultural land and through Court Commissioner in respect of the suit house.
4. Defendant - Shantaram challenged the decree passed in RCS No.322/2005 by filing Regular Civil Appeal No.22/2015 and by filing Regular Civil Appeal No.21/2015 he challenged the judgment and decree passed in RCS No.95/2005. Both the appeals were heard by learned District Judge-8, Beed and by separate judgments pronounced on 14.12.2018, both the suits were remanded to the trial court with directions to allow defendant - Shantaram to amend his pleadings and adduce evidence, if any in view of the observations made in the judgment. It was thereafter directed that the learned Trial court should frame appropriate issues in consequence of the amendment and to give an opportunity to all the parties to put their fresh evidence. These judgments and orders passed in both the Regular Civil Appeals are the subject matter of these four Appeals from order. Civil Applications have been filed in respective Appeal from Orders for stay to the orders passed in the Regular Civil Appeals.
5. Heard learned Advocate Mr. Wani appearing for the appellants in AO Nos.12/2019 and 13/2019; Learned Advocate Shri GR Syed for appellants in AO Nos.22/2019 and 23/2019; Learned Advocate Mr. HV Tungar for Respondent No.1, i.e. Respondent - Shantaram in all the four Appeals from Order.
6. It has been vehemently submitted on behalf of the appellants that the learned District Judge-8 failed to take into consideration the pleadings those
