VASANTRAO Vs. JYOTI

JUDGEMENT

(1.) BEING aggrieved by the Judgment and Decree dated 24th January, 2013 passed by District Judge -12, Nagpur, in Regular Civil Appeal No. 240 of 2008, and order dated 22nd March, 2013 passed in Misc. Civil Application No. 155 of 2013 for review, the present Second Appeal has been filed by the original plaintiff.

(2.) REGULAR Civil Appeal No. 240 of 2008 was filed by the original defendants before the District Judge, Nagpur, against the Judgment and Decree dated 30th March, 2007 passed by Second Joint Civil Judge [Senior Division], Nagpur, in Special Civil Suit No. 1630 of 1998 for specific performance of contract. In the said appeal, Adv. Mr. R.S. Parsodkar appeared for respondent, i.e., original plaintiff Vasantrao Gurjar and also filed Written Notes of Arguments under his signature. In the administrative transfer of the appeals, it came up before the Court of District Judge -12, Nagpur, presided over by Shri A.R. Dhamecha. Shri A.R. Dhamecha was represented by Adv. Mr. R.S. Parsodkar in his personal matters before High Court and, therefore, Mr. R.S. Parsodkar, Adv., stopped appearing in the Court presided over by Shri A.R. Dhamecha and consequently Shri Dhamecha also did not take up his matters. Consequently, Shri Parsodkar, who had filed Vakalatnama for original plaintiff -respondent Vasantrao in the appeal and the appellant herein did not appear in the said Regular Civil Appeal No. 240 of 2008. Regular Civil Appeal No. 240 of 2008 was finally heard by Mr. A.R. Dhamecha, District Judge -12 and decided on 24th January, 2013, showing the name of Mr. R.S. Parsodkar as Adv., for the respondent in the column of appearances and the appeal was allowed.

(3.) IN support of the present appeal, learned counsel for the appellant vehemently argued that when the appellant received the Appellate Court s summons to appear in the appeal somewhere in the year 2008, Mr. R.S. Parsodkar had filed Vakalatnama for the present appellant in the said Regular Civil Appeal No. 240 of 2008 and that appeal was transferred from one court to another and finally landed in the Court of Mr. A.R. Dhamecha and at one stage, Mediator was appointed to look into the case by order on 2nd March, 2012, when Adv. Parsodkar had given No Objection to Adv. Ms. Khadekar, who filed her Vakalatnama on the printed Vakalatnama of adv. Mr. Parsodkar on 4th July, 2012, and accordingly, parties appeared before the Mediator and thereafter again the appeal was heard. Thus, the Review Court concluded that Adv. Ms. Khadekar had appeared in the appeal and Adv. Mr. Parsodkar had not appeared and, therefore, there was no error. To strengthen his argument, Mr. Parsodkar cited a decision of the Supreme Court in the case of Fakruddin Vs. Principal, Consolidation Training Institute & others : (1995) 4 SCC 538], and argued that he had, in fact, signed the Written Notes of Arguments which are on record and it is only at the stage when the appeal was referred for mediation, he had given No Objection to Adv. Ms. Khadekar, because he does not appear before the Mediators. Adv. Mr. Parsodkar argued that, however, right from the beginning, he had appeared for the respondent -plaintiff in that appeal and he had also signed the Written Notes of Arguments. He argued, the fact that the result has gone against the appellant, though his name has been shown as appearing for the appellant, is not relevant. He, therefore, submitted that there was a mistake on the part of learned District Judge -12 in hearing the appeal itself and hence the appeal before the District Court should be re -heard.