1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 324 OF 2008. 1. VILAS CHANDRAKANT MESHRAM AND ANOR. BHANDARA MOHALLA, INDORA, NAGPUR .. PETITIONER/S VERSUS 1. USHA GIRDHAR FULZELE & 3 ORS. MODE TOWER, KAMPTEE ROAD, NAGPUR .. RESPONDENT/S ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri P. D. Meghe Adv for appellants. Shri N. R. Bhishikar Adv for respondents. CORAM: C. L. PANGARKAR J. DATED: 25 th SEPTEMBER, 2009. This second appeal is preferred by the original defendants who suffer a decree for declaration and possession. Respondent Anusaya instituted a suit for declaration that she has become 2 the owner of the suit property left behind by her husband Chandrakant on the basis of will executed in her favour. Defendant No.1 present appellant is her son. It is her contention that defendants 1 to 6 have no right to be in possession since the entire property since that has been bequeathed in her favour by her husband. She sought declaration and possession. Defendants did not appear before the Court and contest the suit at all, as a result of this learned Judge of the trial Court recorded the evidence of the plaintiff and decreed the suit. Against this decree an appeal was preferred before District Judge. District Judge confirmed the decree passed by the trial Court. The defendants therefore feel aggrieved and prefer this appeal. Learned counsel for the appellants submitted that the appeal needs to be admitted on account of two grounds. First ground according to him is that the plaint was amended by the plaintiffs after institution of the suit and although the 3 defendants were exparte no notice as contemplated by Order 6 Rule 17 Civil Procedure Code-Maharashtra Amendment was given to the defendants. He submits that such notice having not been given, a serious prejudice has been caused to the present appellants- defendants and the decree is therefore according to him not proper. Second ground that is raised by him is that notice should have been given by the plaintiffs to the defendants calling upon defendants to vacate the premises before the institution of the suit. As far as second ground is concerned such a ground was not raised even in the memo of appeal before the first appellate Court. Even otherwise the suit has been filed by the plaintiff on the basis of her title and claiming herself to be the owner of the house and claiming that defendants were in fact the trespassers or persons in wrongful occupation. Person in wrongful occupation is not required to be given any kind of notice and an owner can institute a suit against the trespasser without giving him any notice. The second ground therefore as raised by Shri 4 Meghe has no force. As far as first ground is concerned Shri Meghe learned counsel submits that he is entitled to raise said ground even though such ground is not raised in the first appeal. He submits that a breach of the provisions of Rule 17 of Order 6 itself is a question of law and he relied on certain decisions: M. K. Ranganathan Vs. Government of Madras AIR 1955 Supreme Court 604, J. C. Chatterjee Vs. Shrikrishna Tandan AIR 1972 Supreme Court 2526; Balkrishan and Another Vs. Mohsin Bhai and Others AIR 1999 Madhya Pradesh 86; Digambar Parshwanath Jain Mandir Vs. Valabhai Mehta AIR 1961 Bombay 221; Baldev Singh Vs. Sher Singh AIR 1939 Lahore 556; Asaram Bapu Waghmore and another Vs. Bhanudas Dhondiba Patil and Others AIR 1956 Bombay 687; and Syed Mohammad Vs. Mohd. Jagar and Others AIR 1965 Allahabad 589. There is no doubt that the party is entitled to raise any question of law in the second appeal even 5 for the first time although such a question of law may not have been raised in either the trial Court or first appellate Court. The material question here is whether not giving of notice as contemplated by Amended Rule 17 could be a question of law. To my mind not giving of such notice could not be a question of law. It would merely be a procedural lapse on the part of the Judge. Further the appellant has had an opportunity to raise these grounds before the first appellate Court and challenge amendment itself. Those amendments were never challenged before the first appellate Court. In the circumstances I do not think that such a question can be raised for the first time before this Court. In the circumstances I do not find any substance in the second appeal. The same is dismissed in limine. JUDGE svk