IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.215 OF 2003. APPEAL NO.215 OF 2003. APPEAL NO.215 OF 2003. Shri Sudam Shankar Jadhav ...Appellant. Versus. Mrs Sujata @ Janta Sudam Jadhav ...Respondent. Shri V.G.Mujumdar for the Appellant. Shri Vilas B. Tapkir for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 06th February, 2008. : 06th February, 2008. : 06th February, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard advocates appearing for the parties. Considering the fact that the appeal arises out of matrimonial dispute between the parties, the same is taken up for final disposal at admission stage. It must be stated here that advocates appearing for both the parties stated that though they made efforts to bring about amicable settlement between the parties, their efforts have not succeeded. 2. The appellant is the husband and respondent is the wife. The appellant filed a petition for divorce under section 13 of the Hindu Marriage Act, 1955. The trial Court passed a decree of divorce on the ground of cruelty. An appeal was preferred by the respondent before the District Court. By the impugned judgment and decree, the decree passed by the trial Court has been set aside and petition for divorce filed by the appellant-husband has been dismissed. : 2 : 2 : 2 : 3. The substantial question of law which arises for consideration is whether the Appellate Court has performed its duty as the first Appellate Court and as the final fact finding court. 4. When the appeal was argued before the first Appellate Court, the appellant and his advocate were not present. Though the first Appellate Court cannot be blamed for proceeding with the hearing of the appeal, perusal of the impugned judgment and decree shows that the Appellate Court has considered the evidence on record very cursorily and by a cryptic judgment, the decree passed by the trial Court has been set aside. The judgment runs only into one paragraph and reading of the said paragraph shows that there is no elaborate consideration made therein of the evidence adduced by the parties. 5. Therefore only course open for this Court is to set aside the impugned judgment and decree and to remand the appeal for a fresh decision of the first Appellate Court. It is true that the respondent-wife will suffer prejudice and she will have to incur expenditure. Therefore, the respondent can be compensated by ordering payment of costs. : 3 : 3 : 3 : 6. Hence, I pass the following order: (i) The impugned judgment and decree dated 04th June, 2000 is quashed and set aside. The Civil Appeal No.144 of 1997 is restored to the file. (ii) The parties are directed to appear before the learned Principal District Judge, Pune on 10th March, 2008 at 11.00 a.m. (iii) The learned Principal District Judge may hear the appeal himself or may assign it to any other learned District Judge for final disposal. (iv) It is made clear that it will not be necessary for the first Appellate Court to serve any further notice of the date fixed in the said appeal to the parties to the appeal. (v) The appeal shall be decided as expeditiously as possible and preferably by the end of July 2008. (vi) The appellant is directed to pay costs of Rs.7,500/- to the respondent within a period of four weeks from today. If the amount of costs is not paid, it will be open for the respondent to apply before first Appellate Court for : 4 : 4 : 4 : dismissal of the appeal on that ground. (vii) Second Appeal is partly allowed on above terms. (viii) All contentions of the parties on merits of the Appeal are expressly kept open. (ix) The parties and concerned court to act upon an authenticated copy of this order. Judge. Judge. Judge.