BANSHIDHAR Vs. DAYASHANKAR

JUDGEMENT

(1.) The appellant is taking e-ception to the judgments and decrees passed in First Appeal Nos. 173 and 174 of 1998 by which the learned Single Judge of this Court dismissed both the appeals by passing the order which needs to be quoted for the purpose of better unfolding of the matter:

(2.) We need not go to the facts of the appeal because we are dealing with the first important point of law which has been agitated between the parties very keenly in a keen conte-t and according to us that goes to the root of the matter and if there is an adjudication of the said controversial point, it would resolve not only the difficulties arising out of these two L.P.As., but would be a guideline for other L.P.As. also travelling on the same ground and on the same challenge put to the judgment and decree. In view of that both these L.P.As. are being decided finally with the concurrence of the Counsel appearing for the parties by this common judgment and order.

(3.) Mr. V.M. Rege, Counsel appearing for the appellant in both the appeals submitted that the Single Bench of this High Court being the last Court of facts is obliged to pass the judgment and order giving good cogent reasoning for the purpose of Justifying the findings to be recorded by it and failure in doing it results in miscarriage of justice and frustrates the cause of appellants. He submitted that in view of the correct reading of Order 41, Rule 11(4) of the Code of Civil Procedure, 1973 (hereinafter referred to as 'the Code') and understanding the spirit behind it, both the L.P.As. deserves to be allowed and the judgments and the decrees assailed need to be set aside. While substantiating his submissions on this point, he made reference to Clause 10 of the Letters Patent by which the Nagpur High Court was created. He submitted further that though Letters Patent is an intra Court appeal that does not mean that this Court is without any jurisdiction and power to have the reappraisal of the facts and the resultant controversy involved. He submitted that in view of that also the impugned judgment and decree needs to be set aside and the appeals need to be allowed. In the alternative he submitted that if this Court is pleased to do so the matter can be remanded to the learned Single Bench for the purpose of hearing it on merit and for requesting the first Appellate Court to pass a judgment and decree taking into consideration entire facts, legal principle applicable to the controversy involved and appraisal of oral documentary evidence and then record its reasoned finding on all issues so framed.