- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.21 OF 1991 IN FIRST APPEAL NO.178 OF 1991 ... Ramchandra Krishna Bhosale since deceased through legal heirs & representatives ...Appellants v/s. Mr.K.M.Shetty and others. ...Respondents ... Mr.M.D.Angal for the Appellants. Mr.Chambuwala i/b Dave & Co. for Respondents. ... CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 16TH JANUARY, 2008 - 2 - P.C.: 1. By this Appeal the original Plaintiff challenges the order dated 25-2-1991 passed by the learned single Judge of this Court in First Appeal No.178 of 1991. By that order the learned single Judge has dismissed the First Appeal filed by the present Appellant. The present Appellant, as observed above, is the original Plaintiff. He had filed the suit for obtaining possession of the suit premises and business carried thereon in the name and style of Suryakant Tea House at Plot No.97-A, Block No.5A, Darukhana, New Lakdi Bunder, Bombay-400 010 and for a declaration that the Defendants Nos. 2 & 3 are trespassers in the suit premises and also for a mandatory order of injunction injucting the Defendants, their servants and agents to remove themselves and their belongings lying in the suit premises. The trial court by judgment dated 22-12-1990 dismissed the suit. 2. The learned Counsel appearing for the Appellant submits that the order passed by the learned single - 3 - Judge is contrary to the scheme of the Civil Procedure Code in relation to hearing and decision of First Appeal. The learned Counsel submits that the learned single Judge had dismissed the First Appeal by one page order. He submits that under the Civil Procedure Code the first Appellate Court has to frame point for consideration before deciding the Appeal. The learned Counsel submits that even oral and documentary evidence has also not been considered. 3. We have heard the learned Counsel for the Respondent also. 4. We find that the criticism made by the learned Counsel for the Appellant of the order of the learned single Judge is justified. By cryptic order the learned single Judge dismissed the First Appeal. The learned single Judge had not framed any point that arose for consideration. The learned single Judge had not dealt with the evidence on record. The first Appellate Court is also a court of facts and therefore while deciding the First Appeal, the first Appellate Court has to consider the pleadings and evidence, both oral and documentary. In our opinion, therefore, it cannot be said that the First Appeal - 4 - filed by the Appellant has been properly decided in accordance with Civil Procedure Code by the learned single Judge. Therefore, in our opinion, following order would meet the ends of justice. O R D E R (i) The order dated 25-2-1991 passed in First Appeal No.178 of 1991 is set aside. (ii) That First Appeal is remitted back to the learned single Judge for hearing and decision in accordance with law. (iii) No order as to costs. (D.K.DESHMUKH, J.) (V.M.KANADE, J.) - 5 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.181 OF 2006 IN LETTERS PATENT APPEAL NO.21 OF 1991 IN FIRST APPEAL NO.178 OF 1991 ... Ramchandra Krishna Bhosale since deceased through legal heirs & representatives ...Appellants v/s. Mr.K.M.Shetty and others. ...Respondents ... Mr.M.D.Angal for the Appellants. Mr.Chambuwala i/b Dave & Co. for Respondents. ... CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 16TH JANUARY, 2008 - 6 - P.C.: Civil Application is granted in terms of prayer clauses (a), (b) & (c). Amendments to be carried out within two weeks from today. (D.K.DESHMUKH, J.) (V.M.KANADE, J.)