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 2^nd 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