1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.168 OF 1992 WITH CIVIL APPLICATION NO.1818 OF 2008 Bhairu Rama Injal (deceased) .... Appellants through his LRs and others Vs. Ramu Laxman Redekar .... Respondent Mr. K.Y. Mandlik, Advocate for Appellants. Mr. M.Y. Sakhare h/for Smt. Varsha Palav, Advocate for respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 5th December, 2008 P.C. 1. This Second Appeal is preferred from the decree dated 14th January,1992 passed by 4th Additional District Judge, Kolhapur in Regular Civil Appeal No.410 of 1999 arising out of the decree dated 30th August,1990 passed by Civil Judge, Junior Division, Gadhinglaj in Regular Civil Suit No.39 of 1985. 2. The substantial questions of law arising for consideration of this Court as per the order of admission of the appeal are as follows : (i) Whether plaintiff is barred from filing present suit in view of withdrawal of former suit No. 53 of 1981; (ii) Whether the learned Judge was in error in 2 not framing issue as to tenancy and validity of surrender of tenancy to Tenancy Court ? (iii) Whether plaintiff had cause of action as alleged ? (iv) Whether learned Judge was right in rejecting application Ex.44 for adjournment? (v) Is learned Judge right in deciding appeal without framing issues for decision? 3. The dispute in the appeal relates to the agricultural land at gat No.1427 admeasuring 57.7 ares situate at village Mahagaon, Tal. Gadhinglaj, District Kolhapur (hereinafter referred to as “the suit land”). The suit land originally belonged to one Pandurang Narayan Mungale. The respondent who is the original plaintiff purchased the suit land from Vimalabai Dattatraya Gole, Shakuntalabai Pralhad Deshpande and Pushpalata Balkrishna Phatak, the daughters of Pandurang by the Sale-Deed dated 21st April,1981. He claims that the owners put him in possession of the suit land on the same day. About four months thereafter i.e. on 2nd August,1981, the respondent filed Regular Civil Suit No.53 of 1981 in the Court of Civil Judge, Junior Division, Gadhinglaj for a permanent injunction simplicitor to restrain the appellants from interfering with his alleged possession of the suit land. It was contended in the suit that the appellants had never been in possession of the suit land and had no concern with the same. In that suit, the respondent filed an application 3 (Exhibit 5) for interim order in the same terms as a permanent injunction and exparte ad-interim order of injunction came to be passed. Later on the application of the appellants, the ad-interim order was vacated on 23rd July,1981. It was contended in the application that the appellants have always been in possession of the suit land as agricultural tenants of Pandurang. The appellants denied that the respondent was put in possession of the suit land at any time. Thus according to the appellants the respondent had filed a false suit claiming to be in possession and seeking an order of permanent injunction to restrain the appellants from disturbing respondent's possession of the suit land. The respondent carried the order in the appeal by preferring Miscellaneous Civil Appeal No.94 of 1981, which was dismissed. Thereafter the appellants filed the application at Exhibit 38 seeking interim injunction to restrain the respondent from dis-possessing them from the suit land. That application was rejected by the trial Court by the order dated 30th July,1983. The appellants then preferred Miscellaneous Civil Appeal No.180 of 1983. By the order dated 20th October,2003, the Miscellaneous Civil Appeal was allowed and the respondent came to be restrained from obstructing the appellants' possession and vahivat of the suit land. The respondent carried the matter further in the appeal to this Court vide Civil Revision Application No.26 of 1984, which was dismissed on 24th January,1984. Thereafter the respondent withdrew the suit on 10th August, 4 1984. 4. On 10th April,1985, the respondent filed a fresh suit being Regular Civil Suit No.39 of 1985 against the appellants for possession of the suit land contending that though original appellant no.1 was an agricultural tenant in respect of the suit land, prior to 1956 he had voluntarily surrendered the suit land to the owner and since then he has not been in possession of the suit land. Later he and the other appellants encroached upon the suit land. It was contended by the respondent that while withdrawing the Regular Civil Suit No.53 of 1981, he was granted liberty to file a fresh suit on the same cause of action. The appellants filed their written statement contending that they are agricultural tenants in respect of the suit land and never surrendered suit land in favour of the landlord. They claimed to have been in possession of the land as agricultural tenants. They further contended that the suit is barred by the principle of Estoppal and also of res- judicata. When this suit was taken for hearing, the learned trial Judge framed only two issues, which read as follows : 1. Does the plaintiff prove that the defendant Nos.1 to 6 have been in possession of the suit land unlawfully ? 2. Whether the plaintiff is entitled to possession of the suit land? 3. What order and decree? 5 5. Though the appellants had raised contentions based on the principles of Estoppal and res-judicata, no issue concerning the two contentions was framed. Similarly there was no issue framed as regards the claim of agricultural tenancy of all the appellants in respect of the suit land. The parties went into trial on two limited issues mentioned above. After evidence of the respondent was recorded, an application was moved on behalf of the appellants for adjournment (Exhibit 44) stating that their Advocate had met with an accident and had suffered hip bone fracture. It was therefore impossible for him to attend the Court. The learned trial Judge rejected the application with one word order “Rejected”. Thereafter he proceeded to pass the decree directing the appellants to handover the possession of the suit land to the respondent within two months from the date of the decree. The decree was passed solely on the basis of 7/12 extracts in respect of the suit land from the period 1980-1981 to 1983-1984 which showed the respondent was the owner of the suit land. The learned Judge observed that there is nothing in the 7/12 extracts to indicate that any of the appellant was the tenant or cultivator of the suit land. The learned Judge though has referred to at paragraph 9 in his judgment the facts regarding filing of Regular Civil Suit No.53 of 1981 by the respondent and its ultimate withdrawal, he has not considered the effect or consequence of those proceedings on the present suit. 6 6. The decree of the trial Court dated 30th August, 1990 was challenged by the appellants by preferring Regular Civil Appeal No.410 of 1990 in the District Court at Kolhapur. The 4th Additional District Judge, Kolhapur heard the appeal and dismissed the same by the judgment and order dated 14th January,1994. In his judgment, he commented that the trial Judge ought to have allowed the application for adjournment made by the appellants. However, he was of the opinion that thereafter the matter was adjourned twice on which dates the appellants could have engaged another lawyer for conducting the matter. The Appellate Court was also apparently impressed by the revenue records showing the respondent as the owner of the suit land and absence of names of the appellants from the revenue extracts. Perusal of the order of the Appellate Court also shows that there was no discussion therein as regards the claims made by the appellants of agricultural tenancy, their denial that they had surrendered the tenancy to the landlord and the consequences thereof. 7. Mr. Mandlik, the learned counsel for the appellants submits that since the second suit being Regular Civil Suit No.39 of 1985 was filed by the respondent, after withdrawing the formal suit i.e. Regular Civil Suit No.53 of 1981, the respondent could not have filed the same without obtaining leave of the Court granting withdrawal of the first suit. According to him, the second suit filed is on the same cause 7 of action as earlier suit and therefore it was incumbent upon the respondent to obtain leave of the Court permitting withdrawal of the first suit. It is not possible to agree with this submission of Mr. Mandlik, perusal of the plaint in both the suits show that the cause of action thereunder and the reliefs prayed are entirely different. The first suit was filed on the claim that the respondent was in possession of the suit land, which possession was sought to be disturbed by the appellants. The respondent sought a permanent injunction to restrain the appellants from disturbing his alleged possession of the suit land. In the second suit, respondent admitted that the suit land was in possession of the appellants. It was however contended that the appellants were trespassers on the suit land, having trespassed upon the same, some time after October,1984. It was conceded in the plaint that original appellant No.1 was the agricultural tenant in respect of the suit land prior to the year 1956. It was however alleged that he had voluntarily surrendered the tenancy in favour of the landlord and handed over the possession to the landlord and the respondent purchased the suit land and came into possession thereof. The appellants started disturbing his possession and therefore the first suit being Regular Civil Suit No.53 of 1981 came to be filed. With these pleadings, the respondent sought for possession of the suit land from the appellants. Thus the pleadings make it clear that the cause of action pleaded in both the suits was different. 8 Therefore, it cannot be said that filing of the second suit without obtaining leave from the Court allowing withdrawal of the first suit was barred by order 23, rule 4 of The Code of Civil Procedure. 8. It is next submitted by Mr. Mandlik that there was no evidence before the Court of surrender of agricultural tenancy and actual delivery of possession. He points out that the Civil Court cannot decide question of validity of surrender. Even for obtaining possession after surrender, it is necessary for the landlord to apply for restoration of land and comply with Section 29(2), 31 and 31(a) of The Bombay Tenancy and Agricultural Lands Act,1948. It is lastly submitted by Mr. Mandlik that the trial Court ought to have allowed application at Exhibit 44 for adjournment, since it was impossible for the Advocate of the appellants to remain present before the Court. As regards the comments of the first Appellate Court that the appellants could have engaged another lawyer, Mr. Mandlik points out that the appellants are illiterate persons and it was not possible for them to make arrangements for another lawyer under such circumstances. 9. The appellants in their written statement had raised specific contention of being agricultural tenants of the land in question. In that circumstance, it was necessary for the trial Court as well as the first appellate 9 Court to frame issue as regards the agricultural tenancy and the validity of surrender of tenancy and then consider reference of the question to tenancy court. Not doing so has resulted into a grave error on the part of both the courts. Therefore, the impugned orders cannot be sustained. 10. The learned trial judge was also not right in rejecting the application for adjournment (Exh.44) filed by the applicants particularly when the adjournment was sought on account of the Advocate for the appellants meeting with an accident and fracturing his hip bone. The application was rejected with a single word order “rejected”. Consequently reasons for rejection of the order cannot be known. In that case, it must be held that the order passed is without application of mind. The learned judge ought to have applied his mind to the ground pleaded in the application for adjournment and taken a sympathetic view. It is nobody's case that the ground for adjournment was false or the application was filed with some ulterior motive. Such refusal of adjournment does not serve the interest of justice. The first appellate court also failed in its duty in that regard. 11. In the above circumstances, it is in the interest of justice that the orders passed by both the Courts below are set aside and the matter remanded to the trial Court for fresh hearing. The appeal is allowed. The judgment and 10 order dated 14th January,1992 passed by 4th Additional District Judge, Kolhapur in Regular Civil Appeal No.410 of 1999 and the judgment and order dated 30th August,1990 passed by Civil Judge, Junior Division, Gadhinglaj in Regular Civil Suit No.39 of 1985 are set aside. The suit is remanded to the trial Court for fresh hearing. On remand, the trial Court shall re-frame the issues by taking into consideration the respective pleadings of the parties. The respondent's evidence is already recorded in the suit. If he desires to lead any evidence on the issues re-framed, he shall be at liberty to do so. Thereafter the evidence on behalf of the appellants will be recorded. The trial Court shall consider the evidence and decide the suit in accordance with law. 12. In the facts and circumstances of the case, parties to bear their own costs. In view of the disposal of the Second Appeal, the Civil Application No.1818 OF 2008 does not survive, the same is accordingly disposed of. (SMT. R.P. SONDURBALDOTA,J) 11