1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.930 OF 2008 WITH CIVIL APPLICATION NO.1119 OF 2008 Rangrao M. Kumbhar. ..Appellant. Vs. Smt.Anubai N. Kumbhar and ors. ..Respondents. Mr. P.D.Dalvi for the Appellant. Ms. Gauri Godse for the Respondent Nos.1 to 4. CORAM : R.S. MOHITE, J. DATE : 25th August, 2009 PC : 1. Heard both the sides. By consent of the parties matter is heard finally. 2. This is an appeal filed by the original plaintiff who had filed a suit for specific performance in the trial court. When the evidence of the plaintiff was complete, it appears that on 14.7.2005 an order of no cross came to be passed and within a short time the trial court disposed 2 off the suit. The defendant applied for setting aside no cross order. That application Exhibit-37 was rejected by the trial court on 5.8.2005 and thereafter within a short period, the trial court decreed the suit on 14.9.2005. 3. It is the contention of the appellant plaintiff that the decree has been executed by execution of conveyance and he has been put in possession. He further states that he is in possession of the suit land. The appeal which was filed by the original defendants came to be allowed by the impugned order passed on 27.3.2008 and the matter came to be remanded to the trial court. There are findings on merits which have been given by the appellate court. One of the finding is that Kararnama is required to be registered. This finding appears to be erroneous. The Appellate Court has also held that suit was not within limitation. The finding of limitation has been arrived at by calculating the period of three 3 years from the date of the agreement. Prima facie, in my view this is a mistake under law if the suit was found to be filed beyond the period of limitation, the appellate court should have dismissed the suit instead of remanding the matter. However, I am impressed by the third ground that all the material has not come before the court, since the defendants were precluded from cross examining the plaintiff s witnesses and leading their evidence thereafter, if they thought fit to do so. 4. I am however, not convince that the parties should be allowed a free hand to adduce fresh evidence. In my view, appeal can be disposed off by following directions a) remand will be for the limited purpose for cross examining the plaintiff s witnesses who have already examined and who have not been cross examined and for the purpose of allowing the defendants to lead their own evidence if they so desire b) the suit will commence from the stage that existed on 4.7.2005. 4 The impugned decree of the appellate court stands modified and accordingly subject to these modification, appeal stands disposed off. 5. The respondents will pay the costs of Rs. 5000/- to the appellants within a period of eight weeks from today. Costs to be deposited in the trial court and will be condition precedent before the matter proceed further. It is made clear that all contentions are kept open and the trial court will decide the matter without being influenced by the observations made in the impugned judgment passed by the appellate court as well as this court. CIVIL APPLICATION NO.1119 OF 2008 1. As the main appeal is disposed off, civil application does not survive and the same is also disposed off. ( R.S. MOHITE, J.)