:1: 914.sa.338.09 ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.338 OF 2009 1.Baban Rambhau Tope 2.Bharat Rambhau Tope Both Agriculturists Residing at: Waki Budruk,Tal.Khed,Dist.Pune ..Appellants Vs. 1. Mohan R. Tope R/at Waki Budruk, Tal.Khed, Dist Pune 2. Anusaya Gangaram Jadhav R/at Tadivala Road, Old Military Chawl, Rajbahadur Marg,Pune- 411001 3. Smt. Sakhubai Rambhau Tope R/at Waki Budruk, Tal Khed, Dist Pune 4. Barkabai Sahadu Dumbare R/at: Waki Budruk, Tal. Khed, Dist Pune 5. Taibai Rambhau Tope R/at Waki Budruk, Tal Khed, Dist Pune :2: 914.sa.338.09 6. Laxmibai Pandurang Khaire R/at. Kalus, Taluka Khed,Dist Pune 7. Laxmibai Nanabhau Dandekar R/at: Bhose, Tal. Khed, Dist Pune 8. Radhabai Sakharam Mandekar R/at: Ambethan, Tal. Khed, Dist Pune 9. Yamunabai Shantaram Gavhane, R/at: Dawadi, Taluka Khed, Dist. Pune ..Respondents Mr. D. G. Khamkar, for Appellants. Mr. P .S. Dani, for Respondent Nos.1 & 2. CORAM :- G.S.GODBOLE, J. DATE :- 24TH JUNE, 2011 ORAL JUDGMENT:- Heard Learned Advocate Mr. D. G. Khamkar, for the Appellants and Learned Advocate Mr. P. S. Dani, for Respondent Nos.1 and 2. 2. By an order dated 24th August, 2009 notice was issued to the Respondents. The Respondents 3 to 9 have been duly served with the said notice. However, no-one has entered appearance on behalf of the :3: 914.sa.338.09 said Respondents. Perusal of the judgment of the Trial Court shows that the Appellants, who are the original Defendant Nos.1 and 2 had filed Written Statement and the remaining Defendants were supporting the present Appellants. The Appellants had filed Civil Appeal No.342/2001 which was contested only by the Respondents No.1 and 2 and other Respondents did not appear. In view of this and since after hearing the Advocate for the Appellants and Respondent Nos.1 and 2, I propose to remand the Appeal to the District Court for rehearing, issuance of notice of the Second Appeal for final hearing to Respondent Nos.3 to 9 is dispensed with. 3. I have heard Advocate Khamkar for the Appellants and Advocate P. S. Dani for Respondent Nos.1 and 2. 4. The Appeal is admitted on the following substantial questions of law namely:- i) Whether the Learned District Judge-11, Pune was justified in completely over looking the objection raised by the Appellants regarding maintainability of Regular Civil Suit No.210 of 1992 on account of the fact that the original Plaintiffs had themselves filed Regular Civil Suit No.1959 of 1998 for partition and separate possession which had been :4: 914.sa.338.09 dismissed in default by an order dated 09.08.1991; and whether on account of complete non- consideration of the said objection, the Learned Judge of the District Court has failed to discharge the duties cast on the First Appellate Court under Order 41 Rule 31 of the Code of Civil Procedure, 1908? ii) Whether the Learned Judge of the First Appellate Court had correctly calculated shares according to the provisions of Hindu Succession Act,1956 even assuming that the Suit was maintainable? iii) Whether the Learned Judge of the Trial Court was justified in drawing adverse inference against Defendant No.9 for not stepping in the witness box despite filing of an application below Exhibit 43 by the original Plaintiffs calling upon her to step in the witness box, and whether a Plaintiff in a Suit can compel a Defendant to depose as witness? 5. By consent of the Advocate for the Appellants and Respondent Nos.1 and 2, the Appeal is taken up for final hearing forthwith and :5: 914.sa.338.09 heard on the aforesaid questions. The Respondent Nos. 1 and 2 had filed Regular Civil Suit No.210 of 1992 in the Court of Learned Civil Judge, Junior Division, Rajgurunagar, at Khed for partition and separate possession against the Appellants and Respondent Nos.3 to 9, which was decreed by Judgment and Order dated 28.02.2001 and Regular Civil Appeal No.342 of 2001 filed by the Appellants was dismissed by the Learned District Judge-11, Pune by impugned Judgment and Order dated 07.02.2009. Hence this Second Appeal is filed. 6. In the Trial Court, the Appellants herein had specifically raised defense regarding maintainability of the Suit on the ground of filing of earlier Regular Civil Suit No.1959 of 1988 by Respondent Nos.1 and 2 for partition and separate possession and dismissal of the said Suit by order dated 09.08.1991. The Trial Court had considered the said defense in paragraph No.19 of the said Judgment. The Trial Court had also drawn adverse inference against Defendant No.9 for not facing cross-examination and for not stepping in the witness box despite of filing an application below Exhibit- 43 by the Plaintiffs; and has reached the conclusion that Smt. Hausabai was legally wedded wife of Late Rambhau Tope and Smt. Taibai is not a legally wedded wife of Late Rambhau Tope. :6: 914.sa.338.09 7. In Civil Appeal No.342 of 2001 which was filed by the Appellant herein, the question regarding effect of dismissal of the earlier Suit was specifically argued which is evident from the observations in paragraph No.7 of the judgment. The Learned District Judge-11 has recorded argument of Advocate for Respondent Nos.1 and 2 to the effect that since Regular Civil Suit No.1959 of 1988 was dismissed in default, which had not attained finality and hence, the said order would not amount to a Decree under Section 2(2) of the Code of Civil Procedure, 1908. However, after recording the said argument, the Learned Judge of the First Appellate Court had neither framed any point for consideration in that regard as contemplated by Order 41 Rule 31 of the Code of Civil Procedure,1908 as to whether the dismissal of the earlier Suit would bar a fresh Suit or not; nor has considered the said aspect in the paragraphs containing reasoning. 8. In my opinion, this is a fundamental defect in the approach which is expected from the First Appellate Court. Even if the First Appellate Court had not framed any point on this aspect, but had discussed the legal implication in the Judgment, that may not have been a ground to set aside the Judgment and remand the matter back. However, perusal :7: 914.sa.338.09 of the Judgment of the Appellate Court shows that there is no whisper about this specific submission made on behalf of the Appellants, as a result of which, there is no option to hold that the Learned Judge has failed in performing duties imposed on the First Appellate Court under Order 41 Rule 31 of the Code of Civil Procedure,1908. 9. Even on the other aspect as to whether a Defendant can be forced by the Plaintiffs to step in the witness box and whether adverse inference could have been drawn, there is absolutely no discussion about the legal position. The determination of shares would naturally be dependent upon the determination regarding the legal status of Defendant No.9. 10. In view of this, Second Appeal is allowed and I pass the following order:- a. Impugned Judgment and order dated 07.02.2009 passed by the Learned District Judge-11, Pune in Civil Appeal No.342 of 2001 is quashed and set aside and the said Appeal is restored to file. b. The concerned Learned Judge of the District Court,Pune to whom the said Appeal will now be assigned for final hearing, shall issue notice of the Appeal to all the Respondents, particularly to Respondent Nos.3 to 9 herein, since they are not present at the time of disposal of this Appeal. :8: 914.sa.338.09 c. The Appellants and Respondent Nos.1 and 2 through their Advocates shall appear before the concerned Judge of the District Court, Pune on 1st August, 2011. d. The concerned Learned Judge of the District Court, Pune shall thereafter fix an early date for hearing of the Appeal after issuing notice to the Respondent Nos.3 to 9. e. Hearing of the said Civil Appeal No.342 of 2001 is expedited and since the original Suit is filed in the year 1992, District Court is directed to finally hear and decide the Civil Appeal No.342 of 2001 on or before 31st October, 2011. f. No order as to costs. g. Copy of this order be forwarded to the District Court at Pune forthwith. h. By order dated 15th April, 2010, the Record and Proceedings of the Court had been called for which has been received. Since the Appeal in the District Court is revived and remanded for hearing afresh,the Registrar (Judicial) is directed to send back the Record and Proceedings forthwith so as to reach the District Court, Pune on or before 22nd July, 2011. i. The parties and District Court at Pune shall act on an authenticated copy of this order. :9: 914.sa.338.09 j. Since the Civil Appeal No.342 of 2001 is restored to file, if the Decree of the Trial Court had been stayed during the pendency of the said Appeal, it is needless to state that the said interim relief shall revive in favour of the Appellants. (G.S.GODBOLE, J.)