Case Note & Summary
The dispute pertains to ancestral joint family property originally owned by Rau Salunkhe, who had two sons, Bapu and Bajrang. The respondent No.1, Sunita, claimed to be the daughter of Bapu from his second wife Suman, while Bapu's first wife Sakhu (respondent No.2) had sold some suit properties to Yashwant Parit, predecessor of the appellants. The trial court dismissed the suit, but the first appellate court reversed the decision and decreed the suit. The appellants challenged this in second appeal. The High Court framed three substantial questions of law: (i) whether Order 8 Rule 10 CPC mandates automatic decree for non-filing of written statement; (ii) whether the first appellate court's judgment was vitiated for lack of reasons; and (iii) whether the appeal abated due to failure to bring legal representatives of deceased defendants. The High Court held that Order 8 Rule 10 does not mandate automatic decree, the first appellate court failed to assign reasons for reversing the trial court's findings, and the appeal abated as the legal representatives of deceased defendants 4, 8, and 9 were not brought on record within limitation. Consequently, the second appeal was allowed, the first appellate court's judgment was set aside, and the trial court's decree was restored.
Headnote
A) Civil Procedure - Order 8 Rule 10 CPC - Automatic Decree - Order 8 Rule 10 CPC does not mandate the trial court to automatically decree the suit for non-filing of written statement; the court has discretion to pass any order it deems fit. (Paras 1-16)
B) Civil Procedure - First Appellate Court - Reversal of Findings - The first appellate court must assign reasons for reversing the findings of the trial court; failure to do so vitiates the judgment. (Paras 1-16)
C) Civil Procedure - Abatement of Appeal - Order 22 Rule 4 CPC - If legal representatives of deceased defendants are not brought on record within the period of limitation, the appeal abates as against those defendants and may abate entirely if the suit is indivisible. (Paras 1-16)
Issue of Consideration
Whether Order 8 Rule 10 CPC mandates the trial court to decree the suit for non-filing of written statement; Whether the judgment of the first appellate court is vitiated for reversing the findings of the trial court without assigning reasons; Whether the Appeal preferred by the Respondent No. 1/plaintiff abated in its entirety for not bringing on record the legal representatives of the original deceased Defendant nos. 4, 8 and 9, who died during the pendency of first Appeal.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court dated 2/1/2009, and restored the judgment and decree of the trial court dated 4/1/1999 dismissing the suit.
Law Points
- Order 8 Rule 10 CPC does not mandate automatic decree for non-filing of written statement
- First appellate court must assign reasons for reversing trial court findings
- Appeal abates if legal representatives of deceased defendants are not brought on record within limitation
Case Details
2019 LawText (BOM) (08) 126
Second Appeal No.488 of 2017 with Civil Application No.885 of 2017
Smt. Anuja Prabhudessai, J.
Mr. Machindra Deshmukh for the Appellants, Mr. S.A. Pawar for the Respondent and for the Applicant in CAS/888/2017
Yashwant Hari Parit (since deceased through his legal heir) 1A) Balkrishna Yashwant Parit (since deceased through his legal heir 1AB) Sandip Balkrishna Parit and Ors.
Sau Sunita Ashok Bhandare and Ors.
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Nature of Litigation
Second appeal against the judgment and decree of the first appellate court in a property dispute.
Remedy Sought
The appellants sought to set aside the judgment and decree of the first appellate court which had decreed the suit in favor of the respondent No.1.
Filing Reason
The appellants challenged the first appellate court's judgment on the grounds that it reversed the trial court's findings without assigning reasons, and that the appeal had abated due to non-joinder of legal representatives of deceased defendants.
Previous Decisions
The trial court (C.J.J.D., Vita) dismissed Regular Civil Suit No.208 of 1991 on 4/1/1999. The first appellate court (District Judge-1, Sangli) allowed Regular Civil Appeal No.84 of 1999 on 2/1/2009, setting aside the trial court's decree and decreeing the suit.
Issues
Whether Order 8 Rule 10 CPC mandates the trial court to decree the suit for non-filing of written statement.
Whether the judgment of the first appellate court is vitiated for reversing the findings of the trial court without assigning reasons.
Whether the Appeal preferred by the Respondent No. 1/plaintiff abated in its entirety for not bringing on record the legal representatives of the original deceased Defendant nos. 4, 8 and 9, who died during the pendency of first Appeal.
Submissions/Arguments
The appellants argued that the first appellate court reversed the trial court's findings without assigning reasons and that the appeal had abated.
The respondent No.1 argued that the first appellate court correctly decreed the suit.
Ratio Decidendi
Order 8 Rule 10 CPC does not mandate automatic decree for non-filing of written statement; the first appellate court must assign reasons for reversing trial court findings; failure to bring legal representatives of deceased defendants within limitation results in abatement of appeal.
Judgment Excerpts
This second appeal is admitted on the following substantial questions of law: (i) Whether Order 8 Rule 10 of CPC mandates the trial court to decree the suit for nonfiling of written statement; (ii) Whether the judgment of the first appellate court is vitiated for reversing the findings of the trial court without assigning reasons; (iii) Whether the Appeal preferred by the Respondent No. 1/ plaintiff abated in its entirety for not bringing on record the legal representatives of the original deceased Defendant nos. 4, 8 and 9, who died during the pendency of first Appeal.
Procedural History
The suit was filed in 1991. The trial court dismissed the suit on 4/1/1999. The first appellate court allowed the appeal on 2/1/2009, decreeing the suit. The appellants filed the present second appeal in 2017, which was admitted on substantial questions of law and heard finally.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 8 Rule 10, Order 22 Rule 4
