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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

Civil Application [CAS] No.628 of 2021

in

Second Appeal No.357 of 2018

Ghanshyam Budhaji Khobragade & others

vs.

Shrawan Sambhaji Katkar & others

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Office notes, Office Memoranda of

Coram, appearances, Court's orders Court’s or Judge’s Orders

or directions and Registrar’s orders.

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Ms. R.S. Thakre h/f Shri A.H. Lohiya, Advocate for the Appellants.

Shri M. Anilkumar, Advocate for Respondent No.1.

Shri Raja Dandwate h/f Shri M.P. Khajanchi, Advocate for Respondent Nos.2 & 3.

CORAM

: S.M. MODAK, J.

DATE

: 29

^th SEPTEMBER, 2021.

Heard the learned Advocates for the respective parties.

02]

It is true that while issuing notice on 30/10/2018, this

Court has framed one substantial question of law. It deals with

appreciation of evidence by the first appellate Court on the point

of proof of readiness and willingness on the part of the plaintiff.

After hearing the parties at great length on 26/08/2021, this Court

was pleased to admit the appeal on that substantial question of

law.

03]

Now the appellants-subsequent purchasers want this

additional substantial question of law to be framed. Learned

Advocate Shri Anilkumar for respondent No.1-original plaintiff

requested to keep this application pending and it be decided

along with the appeal. He made this submission because he is

interested in early disposal of the appeal than to prolong the

hearing. He has also expressed a fear that on this reason or that

reason, the appellants may prolong the hearing of the appeal.

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04]

The learned Advocate appearing for respondent Nos.

2 & 3-original defendants supported the prayer made in the

application.

05]

As contemplated in proviso to sub-section 5 of Section

100 of the Code of Civil Procedure, the Court can also frame

additional substantial question of law by giving reasons.

06]

When the points framed by the first appellate Court are

perused, apart from the necessary ingredients of readiness and

willingness, a point as to entitlement of the plaintiff for specific

performance has also been framed. My attention is invited to

Section 20 of the Specific Relief Act. The trial Court has also

framed a point as to entitlement of the plaintiff for specific

performance.

07]

Merely because the Courts below have framed a

particular point, it does not mean that this Court is bound to frame

substantial question of law. It can be framed only when the

situation warrants. In paragraph 1(c) of the memo of appeal, the

appellants have suggested a substantial question of law about the

discretion exercised by the first appellate Court in favour of the

plaintiff and an error in that, particularly when the trial Court had

chosen not to exercise that discretion in favour of the plaintiff.

08]

For the above discussion, this Court is inclined to frame

that substantial question of law. Because, if it is framed, the

parties are put to notice about the substantial question of law, on

which they are supposed to argue the appeal. So, by merely

postponing the application till final disposal of the appeal will not

meet the ends of justice. In view of that, the following additional

substantial question of law is framed :

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i.

Whether the first appellate Court has committed an

error in exercising the discretion vested under Section

20 of the Specific Relief Act, in favour of the plaintiff?

The application is allowed and disposed of accordingly.

The matter be kept for final argument on 13^th October, 2021.

JUDGE

*sandesh