: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.978 OF 2006 SECOND APPEAL NO.978 OF 2006 SECOND APPEAL NO.978 OF 2006 WITH WITH WITH CIVIL APPLICATION NO.1639 OF 2006 CIVIL APPLICATION NO.1639 OF 2006 CIVIL APPLICATION NO.1639 OF 2006 AND AND AND SECOND APPEAL NO.997 OF 2006 SECOND APPEAL NO.997 OF 2006 SECOND APPEAL NO.997 OF 2006 Vijaykumar Parashram Dhondge ...Appellant [in both the Appeals] V/s. Daksha @ Manisha Vijay Dhondge ...Respondent [in both the Appeals] Mr.G.M. Joshi, Advocate, for the Appellant. Mr.P.N. Karlekar, Advocate, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. By order dated 31st July, 2007, this Court appointed an Advocate as a Mediator for resolving the dispute between the appellant-husband and the respondent-wife. By further order dated 9th August, 2007, another Advocate was appointed as a Mediator. The Advocates appearing for the parties stated that there was no possibility of settlement. A report to that effect of the learned Mediator was received by this Court. After recording this, on 11th December, 2007, the appellant was directed to place on record a compilation of pleadings and notes of evidence. As : 2 : the Second Appeals arise out of a matrimonial dispute, the Advocates appearing for the parties agreed that the Second Appeals shall be disposed of finally at the admission stage. 2. It will be necessary to refer to the facts of the case in brief. The date of marriage between the parties is 2nd July, 1995. It appears that the dispute between the parties started in the same year. On 27th January, 1998, the respondent-wife filed a complaint against the appellant and others alleging commission of offence under Section 498-A read with Section 34 of the Indian Penal Code. The appellant-husband filed a Petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking a divorce on the grounds of cruelty and desertion. The said petition was filed on 31st December, 1999. The respondent-wife, on 24th January, 2000, filed a Petition under Section 9 of the said Act of 1955 for restitution of conjugal rights. By a common Judgment and Order, the learned Civil Judge (Senior Division) dismissed the Petition for divorce and passed a decree for restitution of conjugal rights in favour of the respondent. 3. There were two Appeals preferred before the : 3 : District Court. By a common Judgment, both the Appeals have been dismissed by the learned 1st Ad-hoc Additional District Judge at Nashik. The result is that the decree of restitution of conjugal rights passed in favour of the respondent stands confirmed and the Decree passed of dismissal of the divorce petition filed by the appellant also stands confirmed. 4. Various submissions on merits have been made by the learned Advocate for the appellant. One of the submissions is that the Appeals preferred by the appellant have been dismissed by a cryptic Judgment by the Appellate Court without considering the oral and documentary evidence on record. The submission of the Advocate for the respondent is that in view of concurrent findings of facts recorded by the Courts below, no interference is called for. 5. I have given consideration to the submissions made before me. It must be noted here that apart from himself, the appellant examined five witnesses including his mother and brother. The appellant produced various documents such as order on application for anticipatory bail, judgment in the sessions case, which are at Exhibit 86 and 62. The respondent-wife examined herself. Respondent-wife : 4 : also examined four other witnesses including Dr.Nandini Shete. Documentary evidence was also produced by the respondent-wife in the form of a statement of a witness in the criminal case and copies of certain letters. 6. The learned Trial Judge framed issues on cruelty and desertion. The learned Trial Judge has also framed an issue on the basis of allegations made by the respondent that she was ill-treated by the appellant-husband. An issue was also framed regarding the allegation of the respondent that the appellant-husband had withdrawn from her society without any lawful excuse or reasonable cause. Issues were also framed on Section 23 of the Hindu Marriage Act, 1955. As pointed out earlier, the issues framed on the ground of cruelty and desertion were answered by the Trial Court against the appellant and the case made out by the respondent was accepted and decree for restitution of conjugal rights has been passed. 7. It will be necessary to refer to the Judgment of the Appellate Court. In paragraph No.20 of the Judgment, points for determination have been framed. In paragraph Nos.21 to 25 of the Judgment, the learned Ad-hoc Additional District Judge has referred to the : 5 : legal position regarding the ground of cruelty. In paragraph No.26 of the Judgment, the learned Judge has referred to the allegations made by the appellant-husband in brief. In paragraph No.27 to 29, the learned Judge has noted the status of both the parties as medical practitioners as well as status of their parents. Paragraph Nos.30 to 43 are very small paragraphs which refer to the allegations made by the appellant. The paragraph No.44 records the conclusion of learned Judge on the issue of cruelty only in one sentence. Paragraph Nos.45 and 47 refer to certain case law and the provision of Section 21 of the said Act of 1955. Paragraph No.48 and 49 refer to the decisions referred to in paragraph Nos.45 and 46. The perusal of the Judgment shows that though the parties examined as many as ten witnesses, the learned Judge of the 1st Appellate Court has not even referred to the deposition of a single witness including the depositions of the appellant and respondent. Perusal of the Judgment shows that there is absolutely no discussion and consideration of the oral evidence of ten witnesses examined by the parties. There is no specific consideration of the exhibited documents on record produced by both the parties. The Appeals have been decided by a very cryptic Judgment containing general observations. : 6 : 8. The 1st Appellate Court is the final Court of facts. There were serious allegations and counter allegations made by the parties. Voluminous evidence was adduced by the parties. The Judgment of the 1st Appellate Court does not disclose that the learned Judge has considered the depositions of various witnesses examined by the parties. On plain reading of the Judgment, it appears that the 1st Appellate Court has not done its duty as the last fact finding Court. 9. A Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is maintainable only on a substantial question of law. As pointed out earlier, duty of the 1st Appellate Court is to scan the oral and documentary evidence on record and after marshalling the evidence, to record the findings of facts. However, the 1st Appellate Court has not done its duty. As pointed out earlier, there is not even a reference to the deposition of a single witness examined by the parties. Therefore, while deciding the Second Appeal this Court does not have the benefit of proper findings of facts recorded by the 1st Appellate Court and, therefore, order of remand is inevitable. : 7 : 10. When this Court earlier indicated to the Advocates appearing for the parties that order of remand will be inevitable, it is argued that the order of remand will cause prejudice to the parties. Therefore, a suggestion was given by this Court that by consent of the parties, this Court can look into the oral and documentary evidence and record findings on merits. However, there is no agreement in this behalf between the Advocates appearing for the parties probably because one of the parties may be deprived of a right to prefer a Second Appeal. 11. In the circumstances, I pass following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Decree dated 28th July, 2006 is quashed and set aside and Civil Appeal Nos.136 of 2004 and 137 of 2004 are restored to file of the District Court. (b). The parties are directed to appear before the learned Principal District Judge of Nasik on 15th April, 2008 at 11:00 a.m. The learned Principal District Judge may hear the : 8 : Appeal himself or may assign the Appeal to any other learned District Judge as per the administrative convenience. It is made clear that no fresh notice of both the Appeals shall be issued to the parties and the parties are bound to appear before the learned Principal District Judge on 15th April, 2008 at 11 a.m. (c). The Appeals shall be decided afresh in the light of observations made in this Judgment as expeditiously as possible and in any event on or before 31st August, 2008. (d). Ad-interim relief granted by this Court in Civil Application No.1639 of 2006 will continue to operate till the final disposal of the Appeals. (e). It is made clear that all contentions of the parties on merits of the Appeals are expressly kept open. (f). Second Appeal is partly allowed in above terms with no orders as to costs. (g). Learned Principal District Judge and : 9 : parties to act upon an authenticated copy of this order. (g). Civil Application No.1639 of 2006 is disposed of in terms of this order. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]