HIGH COURT OF BOMBAY
GURUMEETSING ALIAS BITTU DARSHANSING MANDAN – Appellant
Versus
PRANIL BHASKARAN PUTTAMPURE – Respondent
AO 4/2021
Appeal from Order No.4/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.4 OF 2021 WITH
CIVIL APPLICATION NO.3965 OF 2021
Gurumeetsing @ Bittu Darshansing Mandan … APPELLANT
VERSUS
Pranil Bhaskaran Puttanpure
… RESPONDENT
.......
Shri Anand P. Bhandari, Advocate for appellant
Shri Y.G. Gujarathi, Advocate for respondent
....…
CORAM :
R. G. AVACHAT, J.
DATE :
14th September, 2021
O R D E R :
Heard learned counsel for the parties. The
challenge in this Appeal from Order is to the order dated
20/2/2020, passed by District Judge-6, Dhule in Regular Civil
Appeal No.140/2017. By the impugned order, the judgment
and decree passed in Regular Civil Suit No.18/2006 has been
set aside, remanding the suit back to the Trial Court for afresh
trial.
2.
Shri Anand P. Bhandari, learned counsel for the
the appellant would submit that, Order 43 Rule 23 of the Civil
Appeal from Order No.4/2021
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Procedure Code was not applicable in the facts and
circumstances of the case since the trial Court had not
disposed of the suit on a preliminary issue. According to him,
for application of Order 41 Rule 23-A of the Civil Procedure
Code, the appellate Court has to arrive at a finding that a
decree is liable to be reversed and retrial is necessary.
Learned counsel has relied on the following authorities :-
(1)
Municipal Corporation, Hyderabad Vs. Sunder Singh
[ AIR 2008 SC 2579 ]
(1)
Mahadeorao s/o Damduji Satawne Vs. Nagpur
Improvement Trust [ AIR 2015 (NOC0 1133 (BOM) ]
(2)
Shri Vishnu Dashrath Chavan Vs. Shri Pundalik
Dashrath Chavan [ 2017 (5) Mh.L.J. 163 ]
3.
Shri Y.G. Gujarathi, learned counsel for the
respondent would, on the other hand, support the impugned
order. In my view, the appellate Court was, in the facts and
circumstances of the case, justified in passing the impugned
order. Admittedly, there were two suits between the same
parties. The parties to the suit held the same character i.e.
the plaintiff in both the suits is one and the same person, who
is respondent herein. Both the suits were filed for recovery of
possession of the premises under the Rent Act. It appears
that, the respondent/ plaintiff produced evidence of affidavit
of himself and his witnesses. Mistakenly, the respondent/
Appeal from Order No.4/2021
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plaintiff filed the affidavit in later suit which should have been
filed in earlier one and vice-versa. The Trial Court, therefore,
dismissed the suit, Regular Civil Suit no.140/2017, observing
that the evidence is inconsistent with the pleadings. It is
reiterated that, it was sheer mistake on the part of Advocate
appearing for the respondent/ plaintiff.
4.
The Appellate Court, while allowing the appeal and
remanding the suit back to the trial Court, has observed
thus :-
“15.
It is an admitted position that R.C.S.
No.18/2006 (impugned decree) and R.C.S.
No.19/2006 were pending before the learned
Court of 2nd Joint Civil Judge, J.D. Dhule. Both
the suits were in between same parties. The
properties are different i.e. in R.C.S. No.18/2006
the property is a plot situates within the limits of
village Awadhan Tahsil and District Dhule and in
R.C.S. No.19/2006 a residential bungalow on Plot
No.114 in the area of Municipal Corporation
Dhule.
16.
In view of this situation, I have carefully
gone through the evidence tendered by the
plaintiff, defendant and the judgment delivered by
the learned trial Court. The affidavit in lieu of
examination-in-chief which was filed below
Exh.49 of Pranil Bhaskaran Puttanpure, witness
No.2 below Exh.118 Mushtak Ahmed Latif
Shaikh and of witness No.3 Vilas Sharad Sangle
below Exh.121. In all 3 affidavits in lieu of
examination-in-chief, the description of property
is Final Plot No.114, a residential bungalow
Appeal from Order No.4/2021
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namely ‘Rimjhim”. The entire contents of the
affidavits in