KANTABAI SHIVAJI GADAKH Vs. JAGANNATH BHIKA GADAKH

JUDGEMENT

(1.) This appeal from order under Order 43, Rule 1 (u) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code" for the sake of brevity) is directed against the judgment and order dated 16-12-2004 in regular Civil Appeal No. 129 of 2001 passed by the learned Ist Ad hoc additional District Judge, Shrirampur, Dist. Ahmednagar.

(2.) The facts in brief may be summarised as follows : (a) The appellant was the original plaintiff in Regular Civil Suit No. 297 of 1999 filed in the Court of Civil Judge, Junior Division, Newasa, District ahmednagar, for perpetual and mandatory injunction. The subject matter of the suit is an agriculture land bearing Gut No. 231 situated at Sonai Taluka Newasa district Ahmednagar. The respondents, who are the defendants in the suit, have after entering the appearance filed the written statement in response to the pleadings made in the plaint. The copy of the written statement is annexed with the appeal memo. This written statement seems to have been filed on 31-1-2000 by the defendant Nos. 2 and 3. The defendant Nos. 1 to 5 have also filed counterclaim in the suit in relation to the very same agriculture land. This counter-claim seems to have been filed on March 27, 2001. The plaintiff has also filed written statement to the counter-claim of the defendants. (b) On July 13, 2001, the plaintiff filed an application before the trial Court that he would move an application for transfer of the suit before the learned district Judge, Ahmednagar. Hearing of the suit was, therefore, sought to be adjourned. After obtaining the reply from the defendants the trial Court, by an order dated 13-7-2001, granted time upto 20-7-2001. The suit was thus posted for recording of the evidence of the plaintiff on 20-7-2001. On 20-7-2001, the plaintiff made an application seeking adjournment on the ground that her power of attorney holder since 4/5 days prior to 20-7-2001 was suffering from gastro and was bed-ridden. The plaintiff also stated in the application that her throat was soar and she was unable to make conversation. The plaintiff, therefore, sought adjournment of the suit. This application was considered and rejected by the trial court by the order dated 20-7-2001. While rejecting the said application the trial court observed that the High Court has directed to decide the suit on or before august 3, 2001. It seems that a detail order was passed in this respect below exhibit 87. It also appears from the said order that previously also the suit was adjourned at the instance of the plaintiff. The trial Court also referred to the application seeking transfer of the suit and absence of any order received from the learned District Judge. With these observations the application of the plaintiff for adjournment was rejected. (c) On the same day i. e. on 20-7-2001 the defendants were called upon to enter into witness box and lead the evidence. At this point of time, an application seeking adjournment came to be moved on behalf of the defendants. The suit was listed for the evidence of the plaintiff and cross-examination of the witness of the plaintiff. The application of the plaintiff for adjournment was rejected and the evidence of the plaintiff was also ordered to be closed. In this premise, it is contended in the application by the defendants that the order to strike out the defence was also passed against the plaintiff by the trial Court. Ultimately, it was mentioned that in this way the evidence of the plaintiff was closed on the same day of 20-7-2001. The defendants have, therefore, shown their inability to lead their evidence suddenly on the very same day i. e. 20-7-2001. The defendants in their application have sought only one day's time. Further promise was made in the application of the defendants that they would lead the evidence on the adjourned date and in the interests of justice ultimately time was sought by the defendants. (d) The trial Court rejected the application of the defendants for adjournment. The trial Court also decided the suit on merits and delivered the judgment on the same day i. e. 20-7-2001 dismissing the suit of the plaintiff and the counter-claim of the defendants. The parties were directed to bear their own costs. While deciding the suit and dismissing the suit and the counter-claim on merits, the trial Court recorded findings on all issues i. e. Nos. 1 to 6, 6a to 6f, 7, 8 and 9. Suffice it to say that the suit and the counter-claim were not dismissed or disposed of in default. (e) The dismissal of the suit by the judgment and order dated 20-7-2001 by the trial Court was challenged in Regular Civil Appeal No. 129 of 2001 under section 96 of the Code of Civil Procedure filed by the original plaintiff. (f) The learned Ist Ad hoc Additional District Judge, Shrirampur, District ahmednagar, after hearing the parties, decided the appeal by the judgment and order dated 16-12-2004 in the following terms : 1. Appeal is allowed. 2. Decree passed by Ld. Trial Judge is set aside. 3. No order as to costs to the peculiar circumstances of the case. 4. Ld. Trial Judge is directed to re-admit the plaint by it's original number and restore back it to the stage at which it was on 20-7-2001 i. e. evidence of plaintiff. Counter-claim also stands restored. 5. Ld. Trial Judge shall resume proceedings from that stage, where it was on 20-7-2001. 6. Plaintiff is directed to produce his witnesses for cross-examination. 7. Plaintiff may also adduce any further evidence if desires. So also, defendants are at liberty to adduce evidence, as they require in respect of the suit, as well as counter-claim. 8. Ld. Trial Judge shall decide the matter afresh on the basis of evidence adduced by the parties. 9. Parties are directed to appear before the trial Judge on 12-1-2005. 10. R and P sent back to lower Court. It is this judgment and order dated 16-12-2004 of the first Appellate Court, is the subject-matter of challenge in the appeal from Order under Order 43, Rule 1 (u) of the Code of Civil Procedure.

(3.) Advocate Mrs. Phadnis, initially, has pointed out that the appeal from order though it is filed under Order 43, Rule l (u) of the Code, it is in the nature of a second appeal under section 100 of the Code. She has relied on the judgment of the Apex Court in the matter of Narayanan vs. Kumaran and others reported in 2004 (4) SCC 26. In para 17 of the judgment, the Apex Court held that :