THAKURJI DEOSTHAN Vs. LAXMAN KACHARU DAHAT

JUDGEMENT

(1.) BY the order dated 4th and 5th July 1991, this Court had framed the following points:

(2.) AS per the directions of this Court, the trial Court recorded its findings on the aforesaid points and by its order dated 15-2-1994 forwarded the same to the District Court, Bhandara. At the time of forwarding the said findings to the District Court, Bhandara, the trial Court directed the parties to appear before the District Court, Bhandra on 5-3-1994 for filing the objections, if any. It appears from the record that on 5-3-1994 the parties appeared before the District Court, Bhandara, and on that very day the defendants filed an application before the District Court mentioning therein that time may be granted to them for filing their objections as they could not get the certified copy of the order of the trial Court. It appears that without passing any order on the said application, the District Court remitted the findings of the trial Court to this Court vide its letter dated 9-3-1994 without recording its finding on the aforesaid points framed by this Court.

(3.) SHRI Dhabe, learned Counsel for the respondents, submitted that in view of the provisions of paragraph 470 of Civil Manual, when the High Court refers a suit to the trial Court for recording its findings on any issue or issues with a direction that the findings should be certified through the District Court, the District Court should also record its findings before transmitting the case papers to the High Court. For this he also placed reliance on a decision of this Court in (Ramrao Ramchandra Marathe v. Jairam Kondajee Marathe), 1962 (Vol. 64) Bom. Law Reporter 459. In the said judgment, this Court has observed that the procedure as laid down in Civil Manual about the recording of finding by the District Court on the issues framed and returned by High Court to trial Court will have to be followed and as in that case the said procedure was not followed by the District Court, the District Court was directed to certify the findings of the trial Court and while so directing the specific direction was given to the District Court to give an opportunity to the parties or to their advocates to be heard. It was also observed by this Court in the said decision that the District Court is equally empowered and is in fact under a duty while certifying a findings on an issue remitted to the trial Court to record its own finding obviously because this Court being the second Appellate Court requires the findings on the issues of facts to be recorded by both the courts below. The position would be anomalous if the findings were recorded only by the trial Court and that finding was capable of challenge directly before this Court hearing the matter in second appeal and to that extent it would amount to hearing of first appeal so far as the fresh findings are concerned. Shri Paliwal, learned Counsel for the appellant, has not disputed the said position. However, he submitted that the findings recorded by the trial Court on the points referred to it by this Court mainly based on the documentary evidence which is on record and, therefore, there is no need to merit the matter to the District Court for recording its findings on those points.