1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 993 OF 2002 WITH CIVIL APPLICATION NO. 1336 OF 2002 Amin Noorshah Kadari ........Appellant versus Namdeo Dagadu Tejale........ Respondent. Mr. P.N. Joshi for the Appellant Mr. Arjunwadkar h/f G.S. Godbole for the respondent no.2. CORAM: RANJIT V. MORE, J. DATED : 20th NOVEMBER,2008. P.C.: 1. Heard Mr. P.N. Joshi learned counsel for the appellant and Mr. Arjunwadkar for the respondent. 2. Admit. The following substantial questions of law arise for consideration: 1. Whether the respondent proved the ownership and title of the suit property only on the basis of (1) City Survey extract at Exh. 25 and (2) Municipal Tax Receipts at Exhs. 26 and 27 ? 2. Whether the impugned judgment and decree deserves to be queashed and set aside in as much as the case of the appellant was not even considered on merit ? 3. Since this Second Appeal involves short question, by consent of learned counsel appearing for the respective parties, 2 appeal is taken up for final hearing and is being disposed of by this order. 4. The appellant is the original defendant. The respondent filed regular Civil Suit No.720/93 for possession of the suit property namely City Survey no. 3867, Municipal Committee No. 2956 admeasuring 20x10 ft. In this suit the appellant/defendant was served but he failed to file written statement and hence the suit proceeded without written statement. The respondent examined one witness namely Vimal Namdeo Tejale and produced documentary evidence namely extract of City Survey at Exh.25 and the Muncipal Tax Receipts at Exhs. 26 and 27. The learned trial Judge held that the above evidence was unchallenged and therefore decreed the suit and the appellant/defendant was directed to vacate and hand over the possession of the suit property to the respondent/plaintiff. 5. The appellant/defendant thereafter preferred Civil Appeal No.81/98. The appeal memo disclosses several grounds of objection on merits. It was the case of the appellant that after receipt of the suit summons, he engaged services of one advocate by name Khalid Memon. However, he died prior to the passing of ex-parte decree. The appellant was under impression that his advocate was taking care of his case. However, since the advocate himself died, the trial court passed the decree in his absence. It is to be noted that there was delay in filing appeal and therefore appellant filed separate application for 3 condonation of delay, which application was allowed by the lower appellate court after hearing both the sides. The appellant also filed an application under Order 41(27) of CPC for taking additional evidence. Statement at bar was made that this application remained to be disposed of. The learned judge of the lower appellate court dismissed the appellant's appeal by the impugned judgment and decree. This judgment and decree is being challenged in this Second Appeal. 6. Mr. Joshi learned counsel for the appellant, made two fold submissions. Firstly that the decree of possession could not have been passed in favour of the respondent, only on the basis of (1) city survey extract and (2) municipal tax receipts. He submitted that the city survey extract as well as municipal tax receipts are not the documents of title and therefore the trial court could not have been decreed the suit in favour of the respondent. Secondly he submitted that the lower appellate court did not enter into the merits of the matter. The lower appellate court ignored the appellant's application under 41(27) of CPC and considered the only question that whether ex-parte decree of the trial court requires any interference. In the submission of Mr. Joshi, the lower appellate court did not touch the merit of the case and therefore the impugned judgment and decree deserves to be set aside and matter deserves to be remanded back to the trial court for decision on merit. 7. Per contra Mr. Arjunwadkar, learned counsel for the 4 respondent supported impugned decree. He made some comments about the conduct of the appellant/defendant and submitted that no interference is required in the above said second appeal. 8. Having heard the learned counsel appearing for the respective parties, I am of the considered opinion that there is merit in the second appeal. The trial court granted decree to the respondent only on the basis of (1) City Survey extract and (2) Municipal Tax Receipts. Perusal of the appellant's appeal memo before the lower appellate court will reveal that several grounds of objection on merit were taken before the Appeal Court. The appellant also filed an application under 41(27) of CPC for additional evdience. The learned Judge of the lower appellate court however disposed of the appeellant's appeal only by framing one issue namely Whether the ex-parte decree passed against the appellant/defendant requires any interference ? 9. I have perused the impugned judgment. Though the learned Judge of the lower appellate court has come to the conclusion that the ex-parte decree cannot be set aside, however the entire judgment is silent about merits of the matter. The contentions of the appellant in this regard are not even discussed by the lower appellate court. The appellant's application under 41(27) of CPC is also not disposed of. In these facts and circumstances, I am of the view that the appellant deserves to be given an opportunity to prove his case on merit. 5 Since the merits are not touched by the lower appellate court in the impugned judgment and decree, the matter deserves to be remanded back after quashing and setting aside the impugned judgment and decree. I therefore dispose of the appeal by passing the following order. Order. 10. The impugned judgment and decree is quashed and set aside. The matter is remanded back to the District Court at Nashik for fresh disposal on merit. All points and contentions are kept open. The learned District Court shall endeavour to dispose of the appeal as expeditiously as possible and in any case within a period of six months from today. 11. In view of the disposal of Second Appeal, Civil Application does not survive and the same is also disposed of. (R.V. More, J.)