IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.159 OF 2008

Waman Vanji Kumbhar PETITIONER

VERSUS

Dilip Shankar Kumbhar, and others RESPONDENTS

Mr.S.P.Brahme, advocate for petitioner. Mr.P.S.Patil, advocate for respondents.

(CORAM : A.V.POTDAR, J.)

DATE : 26/06/2009

PER COURT :

1. By the present Civil Revision Application, the revision applicant/original defendant in the RCS No.10/2002, pending on the file of Civil Judge, J.D. Dhule has challenged the order passed by Learned District Judge1 Dhule in Misc. Appeal No.30/2007 by which the learned District Judge1 Dhule has allowed the Misc. appeal filed by the original plaintiff/espondent herein to set aside the order of dismissal of the suit bearing no.10/2002 dated 14/06/2006.

2. Heard Adv.S.P.Brahme for applicant followed by the arguments of Mr.P.S.Patil, advocate for the respondents. The order passed by the Learned District Judge1 Dhule is challenged in the present Civil Revision Application on two counts. First when the suit was listed for hearing and on that day, the plaintiff failed to appear in the Court to lead his evidence, the order was passed under Order 17 Rule 2 of CPC in view of the procedure laid down under Order 9 of The CPC. Where the suit was dismissed under Order 9 Rule 8 of CPC or under Order 9 Rule 3 of CPC, there shall not be a restoration under Order 9 Rule 9 of CPC. Hence the Misc.Civil Appeal is filed under Order 43(1) (c) of The CPC, which appeal itself is not maintainable. At this juncture, it is to be made clear that if the text of Order 17 Rule 2 of CPC is properly read which speaks for procedure if parties fail to appear on day fixed – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appeal, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by order IX or make such other order as it thinks fit.

3. If the suit to be disposed of as per the modes given under Order 9 of CPC, then in other words for the failure of the party on the day fixed for the hearing, if the order required to be passed as provided under the procedure laid down under Order 9 of CPC, then further remedy for the party is also provided and to be considered in the light of modes as provided under Order 9 of CPC itself. In the premise, even though while applying the procedure as laid down under Order 17 Rule 2 of CPC, and the order to be passed as provided under Order 9 of CPC, then the mode of the restoration or the remedy to be followed is provided under Order 9 itself. If the restoration is provided under Order 9 Rule 9 of CPC, then it is but natural if such application for restoration is rejected, then the remedy is to file the appeal against the order as provided under Order 43(1)(c) of the CPC. This position is made clear by the First Appellate Court in its observation in para no.7 of the impugned order, which need not require any interference at the hands of this Court.

4. The second objection about the order under challenge on the part of the revision applicant is that while setting aside the order passed by the Trial Court, the First Appellate Court have not appreciate the evidence lead by the parties at all in the restoration proceeding. There are certain admissions given by the respondents herein, who were appellant before the First Appellate Court. Roznama of RCS No.10/2002 speaks about the absence of the respondents plaintiffs, and due to their absence who were prosecuting the suit on the day fixed, the proceeding against the present petitioner in the Trial Court is dismissed. According to him, this factual aspect nowhere discussed by the First Appellate Court in its judgment in para no.5 & 6. With the assistance of the advocate for petitioner, and advocate for respondents, perused the evidence recorded in the restoration petition before the Trial Court. The reasoning given by the Trial Court was set aside by the First Appellate Court as mentioned in para no.5 and 6 of its order. Here this Court has to bear it in mind that the First Appellate Court is the last fact finding Court, then in the judgment of the First Appellate Court, the First Appellate Court to discuss the evidence lead by the parties before the Trial Court and to Court to give the proper reasoning either for rejecting that evidence or to accept that evidence. Without giving any proper reasoning either to accept or to reject the reasoning given by the Trial Court, it is not proper on the part of the First Appellate Court to cursorily observe the evidence recorded before the Trial Court and to make one line observation that the evidence is not properly appreciated or the evidence is properly appreciated. If there is no discussion about the fact finding and evidence recorded before the Trial Court, then it is to be said that such observation and reasoning recorded in the judgment of the First Appellate Court are perverse and without application of mind. On this ground, the prayer of the learned advocate appearing for the revision applicant to remand the matter for the fresh appreciation is worth to be accepted. On this ground, even though this prayer was vehemently opposed by the advocate for respondents, this Court is not in agreement with his submissions.

5. In the premise, the present Civil Revision Application is partly allowed. The order passed in Misc.Civil Appeal No.30/2007 is hereby quashed and set aside. The Misc.Civil Appeal No.30/2007 is remanded to the District JudgeDhule with a direction to hear it afresh and to be disposed of within 3 months from the date of appearance of the parties before the First Appellate Court. The parties are hereby directed to appear before the First Appellate Court on 07/07/2009. Both the advocates appearing for the parties in this Court to intimate and instruct the parties to appear before the First Appellate Court on 07/07/2009. It is made clear that the First Appellate Court not to influence with the observations of this Court while the present Civil Revision Application is disposed of. Accordingly Civil Revision Application stands disposed of with no order as to costs. Till the Misc. Appeal is finally decided, there is stay to the proceeding in the Trial Court in R.C.S. No.10/2002.

(A.V.POTDAR, J.)

khs/cra15908