Second Appeal No.212/1989 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 212/1989 1 Ananda Nagorao Ingole, ...Appellant. Versus 1 Gangya s/o Tulasya Ingole, Age : Major, Occu. Agri. R/o Nila, Tq. & District Nanded (Died) through L.Rs. 1(i) Babasaheb s/o Gangya Ingole, Age : 35 years, Occu. Agri., R/o Nila, Tq. & Dist. Nanded. 1(ii) Kashinath s/o Gangya Ingole, Age : 45 years, Occu. Agri. R/o Nila, Tq & Dist. Nanded. 2 Prabhakar Bhawanidas Deshpande, 3 Uttam Nagorao Ingole, ...Respondents. Mrs. M.A. Kulkarni, Advocate for the appellant. Mr. S.V. Natu, Advocate for respondent Nos. 1(i) & 1(ii) CORAM : A.V. Nirgude, J. DATED : 6th June, 2011. ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. The following substantial question of law was framed in this appeal at the time of admission. “Whether the trial judge has applied mind to facts stated in plaint and if not, whether he was right in decreeing the suit under Order VIII Rule 5 ?” 3. The respondent No.1 filed R.C.S. No. 593/1985 in the Second Appeal No.212/1989 2 Court of Joint Civil Judge (J.D.), Nanded, against the present appellant and the respondents No.2 and 3. It was, in short, his case that he was in possession of the suit land as tenant of one Bhavanidasrao. He said, the landlord started proceeding for possession, against him in 1970 under the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1961 but failed. He said, even the appeal filed by the landlord failed. He said, the landlord’s son, the respondent No.2 sold the land to the present appellant and the respondent No.3. He said, they tried to obstruct his peaceful possession and so he filed the suit for perpetual injunction. 4. The appellant and the other defendants did not file written statement though number of opportunities were given to them. Ultimately, on 20/02/1987 the learned judge of the trial Court delivered his judgment in open Court and decreed the suit utilizing his powers under Order VIII Rule 5 of C.P.C.. The learned judge of the trial Court dictated a short judgment in which he has mentioned the facts and said that since the appellants and other defendants did not file written statement, it would be lawful for him to pronounce the judgment. He decreed the suit as prayed for. 5. The present appellant aggrieved by this judgment, went in appeal before the learned District Judge, by filing R.C.A. No. 78/1987. The appeal was ultimately heard by the learned III Additional District Judge, Nanded. The learned judge of the appellate Court observed in his judgment that generally when a dispute is in respect of title to immoveable property, it is desirable that the judgment should not be pronounced by taking recourse to Order VIII Rule 5 or Order VIII Rule 10 of the Code of Civil Procedure. He observed further that in such a Second Appeal No.212/1989 3 situation, the learned judge of the trial Court should call upon party to lead evidence and to produce necessary documents, if any, etc.. He further observed and rightly so, that this is a ‘rule of prudence’ rather than ‘rule of law’. After observing this, the learned judge of the first appellate court perused the plaint and the documents annexed to it. He found that there were number of documents annexed to the plaint establishing the case of respondent No.1 (original plaintiff) and so he dismissed the appeal qualifying that the perpetual injunction would continue till the appellant and other defendants would take recourse to due process for evicting original respondent No.1. 6. From these facts, it becomes clear that it is not a case where the learned judge of the trial Court did not apply his mind to the facts of the case. As said above, in the short judgment which the learned judge of the trial Court delivered in open Court, he narrated the facts of the case and then he said that since the defendants did not oppose or contradict the facts mentioned in the plaint, he was free to deliver the judgment under Order VIII Rule 5 CPC. I do not find that the learned judge was wrong in decreeing the suit under Order VIII Rule 5 of the Code of Civil Procedure. The appeal should therefore, fail. 7. The appeal is dismissed. The oral application to keep judgment in abeyance is also dismissed. [A.V. NIRGUDE,J.] ts k/2011/June6/sa212.89/ok