RAMESH RADKABHAI VARTHA Vs. BABUBHAI MAHADUBHAI RAUT

JUDGEMENT

(1.) Admit.

(2.) Regular Civil Suit No. 15 of 2001 was dismissed by the trial Court on 30.09.2010 and the defendant was directed to refund an amount of Rs.40,000/- towards compensation along with 12% interest from the date of the suit till the realization of the amount. Though the lower appellate Court dismissed Regular Civil Appeal No. 8 of 2010 on 05.05.2012, it also sets aside the relief granted regarding compensation by the trial Court without there being any cross objection. The plaintiff is before this Court in this second appeal.

(3.) After hearing the learned counsels appearing for the parties, it is apparent that the lower appellate Court could not have set aside the decree passed by the trial Court awarding compensation without there being any cross objection. The defendant had basically raised a plea of 'undue influence'. The trial Court did not frame any issue on this aspect and the appellate Court has also not considered this aspect. Though, both the courts below have held that the agreement has been proved, the appellate Court reversed the finding recorded by the trial Court on all other issues. In the light of this factual position, the question of remand of the matter before the trial Court to frame an additional issue of 'undue influence' in execution of the agreement dated 24.12.1998 is required to be considered.