BALKRISHNA PANDURANG CHUNARKAR Vs. VITHOBA SAHDEO BANDHE

JUDGEMENT

(1.) This second appeal is filed at the instance of original defendants challenging concurrent judgment and decree passed by the Courts below. Parties are hereinafter referred to as per their original status in the suit.

(2.) The appeal was admitted by this Court (S.B. Mhase, J as he then was) vide order dated 18.9.1996. However, questions of law or substantial questions of law were not formulated while admitting the second appeal. Section 100 (4) of the Code of Civil Procedure enjoins the Court to frame the substantial question on which the appeal has been admitted. However, failure on the part of the Court, though serious, does not affect the process of appeal as is held by this Court in Sonubai Yeshwant Jadhav v. Bala Yadav and ors, 1983 AIR(Bom) 156. It has been held by this Court in Sonubai"s case (supra) that the Court would be entitled to cure such a defect of Court"s failure to comply with the mandatory requirements of sub-section (4) of Section 100 CPC even by formulating such a question at the later stage. None appears for appellant. After going through the memo of appeal and record as also after hearing learned counsel for respondent, as pleaded, following substantial questions of law arose in this appeal.

(3.) Facts briefly mentioned, are :