1 A.O. No.120/09 1/4 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Appeal against Order No. 120 of 2009 Ratanlal S/o Buddulal Jaiswal, Aged about 41 years, Occu. Agriculturist, R/o Wadhona, Tah. Chandur Rly, Distt. Amravati (Mah.) ..VERSUS.. 1. Vijay S/o Wamanrao Gedam Aged about 40 years, 2. Pramod S/o Gulabrao Gaikwad, Aged about 37 years, 3. Sau. Sangita W/o Vijay Gedam, Aged about 37 years, All R/o Wadhona, Tah. Chandur Rly., Dist. Amravati (Mah.) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. V.R.MUndra, Advocate for the appellant. Mr. C.A. Barekar, Advocate for respondent no.1 None for R.Nos.2 and 3 C ORAM : Smt.R.P.SondurBaldota, J. DATED : 26th February, 2010. This appeal from order challenges the common judgment and order dated 3rd February, 2009, passed by the court of District Judge-2, Amravati, on two Regular Civil Appeals i.e. R.C.A. No. 108/2004 preferred by the appellant and R.C.A. No. 94/2004 preferred by the respondents. The Appeal from Order is not objected to by 2 A.O. No.120/09 2/4 the respondents. The appellant had filed Regular Civil Suit No. 114 of 2000 for specific performance of the agreement of sale in the form of earnest note. During trial, he produced photostat copy of the earnest note stating that the original earnest note was lost. The photostat copy was taken on record and marked Exh.56 despite objection by respondent no.1 to the mode of proof of the document by taking a note that the validity of the objection would be considered at the final hearing. Later at the time of final hearing, the trial court held that the earnest note was an admitted document. The respondent contended that it was executed towards security for repayment of loan. The suit was decreed by the judgment and order dated 5th March, 2004. Both the sides preferred appeal against said judgment and order in respect of the matters in which they were aggrieved. By the impugned order, the learned District Judge, dismissed the appellant’s appeal and allowed the appeal filed by the respondents. The impugned decree was set aside and the suit was remanded to the trial court for retrial with direction to provide opportunity to the parties to lead evidence in the context of the admissibility of secondary evidence of the earnest note and the fluctuation in the prices. The reason given in the order for remand is that the trial court ought not to have postponed decision on admissibility of the document as it deprived the aggrieved party to challenge the decision. Mr. Mundra, the learned counsel for the appellant 3 A.O. No.120/09 3/4 submits relying upon decision of Full Bench of this Court in Hemendra Rasiklal Ghia ..vs.. Subodh Mody, reported in 2008(6) Mh.L.J. 880 that the first appellate Court was in error in directing retrial of the suit on such ground and that he ought to have heard the appeal on its merits. Perusal of the impugned judgment and order shows that the learned Judge has not considered the case of the parties on its merits. He has taken into consideration only one aspect and that is admissibility in evidence the xerox copy of earnest note (Exh.56). In the decision cited, the Full Bench has held that there is no thumb rule that the objection must be decided at the initial stage. Though ordinarily such objection should be decided as and when raised, the court in the facts and circumstances of the case, has discretion to postpone the decision to trial. In the circumstances, the lower appellate court was not right in remanding the suit for fresh hearing after recording of further evidence. It ought to have decided whether exhibition of the document in the facts of the case was correct in law. Hence, the appeal is allowed. The impugned judgment and order dated 3rd February, 2009 is set aside. The R.C.A. No.108/2004 and R.C.A. No.94/2008 are restored to file. The first appellate Court is directed to consider the appeal on merits and dispose of the same in accordance with law. No order as to costs. 4 A.O. No.120/09 4/4 Civil Application (CAA) No. 25 OF 2010. Mr. Mundra points out that the appellant has paid full court fees in the present proceedings as it was initially filed as Second Appeal and lateron converted into an Appeal from Order and requests for refund of the court fees. The application is allowed. Office to refund the Court fees in accordance with law. Civil Application is disposed of. No costs. JUDGE. Diwale