… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.66/2002. (Converted into APPEAL FROM ORDER NO.27/2011) 1 Shri Pundalik Raghoba Mahale, Married, aged about 50 years, Residing at House No.79, Ugvem, Pernem Goa. 2 Shri Savlo Bapu Mahale, Married, aged about 61 years, residing at House No.66, Ugvem, Pernem Goa. 3 Shri Vasant Kashiram Mahale, Married, aged about 38 years, residing at House No.80, Ugvem, Pernem Goa. 4 Shri Atmaram Sagun Mahale, Married, aged about 46 years, residing at House No.81, Ugvem, Pernem Goa. 5 Shri Pandurang Bapu Mahale, Married, aged about 58 years, residing at House No.66, Ugvem, Pernem Goa. 6 Shri Chandrakant Ladu Mahale, Married, aged about 28 years, residing at House No.7, Ugvem, Pernem Goa. 7 Shri Vishnu Govind Mahale, Married, aged about 45 years, residing at House No.79, Ugvem, Pernem Goa. 8 Shri Manohar Kashiram Mahale, Married, aged about … 2 … 41 years, residing at House No.80, Ugvem, Pernem Goa. 9 Smt. Baya Govind Mahale, Also known as Ramavati Govind Mahale, wife of Govind Sadu Mahale, aged about 41 years, residing at House No.52, Ugvem, Pernem Goa. 10 Shri Nhanu Kalu Mahale, Married, aged about 42 years, Police Constable no. 65, Presently at Curchorem Police Station, C/o. Inspector General of Police, Panaji Goa, presently At House no.67, Ugvem, Pernem Goa. 11 Shri Anant Shantaram Mahale, Married, aged about 36 years, residing at House No.57, Ugvem, Pernem Goa. 12 Shri Babaji Bhiso Mahale, aged about 44 years, residing at House No.60, Ugvem, Pernem Goa. 13 Shri Kalu Nhanu Mahale, Married, aged about 66 years, residing at House No.67, Ugvem, Pernem Goa. 14 Shri Ganesh Tukaram Mahale, Married, aged about 55 years, residing at House No.66, B, Ugvem, Pernem Goa. 15 Shri Bapu Sawlaram Mahale, Married, aged about 36 years, Police constable, GRF … 3 … Police Altinho, Panaji Goa. 16 Shri Namdev Kalu Mahale, Married, aged about 35 years, residing at House No.67, Ugvem, Pernem Goa. 17 Shri Ashok Ramchandra Mahale, Married, aged about 20 years, residing at House No.51, Ugvem, Pernem Goa. 18 Yeshwant Chandro Mahale, Married, aged about 60 years, residing at House No.33, Ugvem, Pernem Goa. 19 Shri Sagun Chandro Mahale, Married, aged about 46 years, residing at House No.33, Ugvem, Pernem Goa. 20 Shri Ravindra Yeshwant Mahale, bachelor, aged about 25 years, residing at House No.33, Ugvem, Pernem Goa. 21 Shri Tulshidas Sagun Mahale, bachelor, aged about 24 years, residing at House No.33, Ugvem, Pernem Goa. 22 Shri Satu Jaganath Mahale, married, aged about 40 years, residing at House No.38, Ugvem, Pernem Goa. 23 Shri Namdev Waman Mahale, married aged about 43 years, residing at House No.42, Ugvem, Pernem Goa. … 4 … 24 Shri Vishram Shankar Mahale, married, aged about 32 years, residing at House No.28, Ugvem, Pernem Goa. 25 Shri Suryakant Vithu Mahale, Bachelor, aged about 26 years, residing at House No.22B, Ugvem, Pernem Goa. 26 Shri Gangaram Shankar Mahale, Married, aged about 65 years, residing at House No.49, Ugvem, Pernem Goa. .. Appellants. Versus Shri Harischandra Krishna Mahale, son of Krishna Mahale, Since deceased, Through his legal representatives: 1 Smt. Chandravati H. Mahale, Widow of Harischandra Mahale, Housewife, of full age, (since Deceased Through LRS at Sr. No. 2,3,4,5,6). 2 Premnath H. Mahale, son of Harischandra Mahale, Of full age, married to, 3 Smt. Sunanda P. Mahale, Wife of Premnath Mahale, major 3a Shri Purushottam Nanu Mahale, married, aged about 50 years, residing at H. … 5 … No.52, Ugvem, Pernem Goa. (since expired deleted as per order dt.6.2.2003 passed in M.C.A. No.41/2003) 3b Shri Nartoji Ganesh Mahale, married, aged about 38 years, r/o. Ugvem, Pernem Goa. 3c Shri Bhiva Lakshiman Mahale, married, aged about 26 years, r/o. H. No.57, Ugvem, Pernem Goa. 3d Shri Gunaji Hira Mahale, married, aged about 20 years, H. No.44, Ugvem, Pernem, Goa. 3e Shri Digambar Mauso Mahale, married, aged about 26 years, resident of H. No. 41, Ugvem, Pernem, Goa. (Since expired deleted as per order dt.6.2.2003 passed in M.C.A. No.41/2003. ) 4 Ratnakar H. Mahale Son of Harischandra Mahale, Married, of full age. 5 Bharati Ratnakar Mahale, Wife of Ratnakar Mahale, Major, 6 Girish H. Mahale, Son of Harischandra Mahale, Major, unmarried, All residing at Dangui Colony, Alto Duler, Mapusa, Bardez, Goa. .. Respondents. … 6 … Mrs. A. A. Agni, Advocate for the appellants. Mr. I. Agha, Advocate for respondent nos.1, 2, 4 to 6. Mr. M. Viegas, Advocate for respondent nos.3(b), 3(c) and 3(d) absent. CORAM :- A. P. LAVANDE, J. DATE : 8 th June, 2011. ORAL JUDGMENT : Heard Mrs. Agni, learned Counsel for the appellants and Mr. Agha, learned Counsel for respondent nos.1,2, 4 to 6. Mr. Viegas, learned Counsel for respondent nos.3(b), 3(c) and 3(d) is absent. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 5th October, 2002 passed by the IInd Additional District Judge, North Goa, Panaji in Regular Civil Appeal No.113/2001 by which the appeal preferred by the respondents herein against the judgment and decree dated 14th August, 2001 passed by the learned Civil Judge, Junior Division, Pernem in Regular Civil Suit no.45/2001 has been allowed. … 7 … 3. Briefly, the facts leading to filing of the present appeal are as under : Harishchandra Krishna Mahale filed Regular Civil Suit No.45/1985 which was later on renumbered as Regular Civil Suit No.45/2001, before the Civil Judge, Junior Division, Pernem seeking relief of permanent injunction against the defendants. The appellants were the defendants in the suit and the respondents are the legal representatives of said Harishchandra Mahale. The suit was contested by the defendants by filing written statement. After framing of the issues Harishchandra stepped in the witness box on 18th June, 1993 and he was cross-examined. He expired on 13th March, 1995. Thereafter, the application for setting aside abatement and to bring the legal representatives of the sole plaintiff was filed by the respondents herein on 10th August, 1995. On 17th August, 1995, notice was issued by the trial Judge on the said application. However, no formal order was passed on the said application. However, on behalf of the legal representatives of the original plaintiff, the evidence of three witnesses in addition to the evidence of the original plaintiff was led. The legal representatives were represented by Advocate. Thereafter, the defendants examined five … 8 … witnesses in support of their case. By judgment and decree dated 14th August, 2001, the learned Civil Judge, Junior Division dismissed the suit. 4. The legal representatives of the original plaintiff Harishchandra Mahale filed Regular Civil Appeal no.113/2001 challenging the decree passed by the trial Court. During the course of the hearing of the appeal, the learned Additional District Judge, Panaji suo motu took cognizance of the fact that no formal order was passed on the application dated 10th August, 1995 and after giving an opportunity of being heard to the parties, passed the impugned judgment quashing the judgment and decree passed by the trial Court and remanding the matter to the trial Court to decide the application dated 10th August, 1995 and further directed that if the said application is allowed, the trial Court to proceed in the suit from the stage at which the said application was filed. The lower appellate Court also drew up the decree. Challenging the judgment and decree passed by the lower appellate Court, the defendants have filed the present Second Appeal. 5. After hearing the learned Counsel appearing for … 9 … the parties, this Court by order dated 6th February, 2003 admitted the appeal on the following substantial questions of law : “(i) Whether there can be implied leave to appeal to the legal representatives of the deceased plaintiff when it is the contention of the legal representatives who are respondents herein that their suit had abated in the year 1995 and whether the appeal was competent and it was open for the appellate court to set aside the judgment and decree passed in Civil Suit No.45/2001 dated 14.8.2001 and remand the suit to the trial Court for deciding application for setting aside abatement after holding that the suit is abated. (ii) Whether an order setting aside of abatement can be implied from the fact that the respondents were represented through an Advocate before the trial Court, they had led their evidence through their power of attorney holder and the matter was decided on merits after recording the evidence of both the parties giving them full opportunity on merits. (iii) Whether the appellate Court could treat the suit as abated and yet draw a decree at the instance of the legal representatives of the deceased plaintiff upon setting aside the judgment and decree of the trial Court. (iv) Whether once the appellants were brought … 10 … on record before the appellate Court as legal representatives of Harishchandra Mahale, even assuming they were not brought on record before the trial Court it would enure for the purpose of the suit and what would be the effect of the cause title in the civil suit being amended and the respondents shown as the plaintiffs in the cause title. (v) If according to the appellate Court the suit had abated in the year 1995 after the death of the original plaintiff whether the appellate Court could have passed an order setting aside the judgment of the appellate Court whereby the suit was dismissed and could have remanded the suit to the trial Court with further direction to decide the application and take up the suit further from the stage the application dated 10.8.1995 was filed.” 6. When the matter was called out for hearing, Mr. Agha, learned Counsel appearing for respondent nos.1,2, 4 to 6 contended that Second Appeal filed by the appellants is not maintainable in as much as the lower appellate Court has remanded the matter to the trial Court and as such, in terms of Order XLIII Rule 1(u) of C.P.C. read with Order XLI, Rule 23A of C.P.C., against the impugned judgment and decree Appeal from Order is maintainable. … 11 … 7. Mrs. Agni, learned Counsel appearing for the appellants submitted that the appeal was admitted after hearing the learned Counsel for the respondents and since the respondents have not challenged the order admitting the appeal, the appeal cannot be dismissed summarily at this stage on the ground that the same is not maintainable. However, Mrs. Agni fairly conceded that against the impugned judgment and order Appeal from Order in terms of Order XLIII, Rule 1(u) of C.P.C. would lie since the lower appellate Court has remanded the matter to the trial Court. Mrs. Agni further submitted that the appellants cannot be non-suited at this stage more particularly after the appeal was admitted after hearing the respondents and in the event this Court holds that Appeal from Order is maintainable, liberty be granted to the appellants to convert Second Appeal into Appeal from Order since Appeal from Order would be also maintainable before this Court and the appeal has been filed within limitation period prescribed for Appeal from Order. In support of her submissions, Mrs. Agni relied upon the decision of Full Bench of this Court in the case of Jagdish Balwantrao Abhyankar and others vs. State of Maharashtra; AIR 1994 Bombay 141 and of the Apex Court in the case of Nawab Shaqafat Ali Khan and others Vs. Nawab Imdad Jah … 12 … Bahadur and others; (2009)5 SCC 162. Placing reliance upon the said judgments, Mrs. Agni submitted that leave be granted to the appellants to convert Second Appeal into Appeal from Order and the matter be disposed of on merits. 8. Mr. Agha, learned Counsel for the respondents submitted that since Second Appeal itself is not maintainable against the judgment and order passed by the lower appellate Court, no leave can be granted to the appellants to convert Second Appeal into Appeal from Order. Mr. Agha further submitted that mere fact that the appeal has been admitted after hearing the respondents, would not come in the way of this Court from holding that Second Appeal is not maintainable in view of the clear language of Order XLIII, Rule 1(u) and Order XLI, Rule 23(a) of C.P.C. which prescribe that against the order of remand, an Appeal from Order is maintainable. In support of his submissions, learned Counsel placed reliance upon the judgment of the Apex Court in the case of Madan Naik (Dead by LRs.) and others Vs. Mst. Hansubala Devi and Others; AIR 1981 SC 676. He further submitted that the scope of interference in Appeal from Order and in Second Appeal by this Court is not identical and as such, the appellants are not entitled to convert of Second … 13 … Appeal into Appeal from Order. He placed reliance upon the judgment of the Apex Court in the case of Narayan Vs. Kumaran and others; (2004) 4 SCC 26. 9. On merits, Mrs. Agni submitted that the lower appellate Court has clearly erred in remanding the matter to the trial Court on the ground that no formal order was passed by the trial Court allowing the application dated 10th August, 1995 filed on behalf of the legal representatives of the original plaintiff. According to Mrs. Agni, the approach of the lower appellate Court is highly technical in as much as although no specific order was passed on the application dated 10th August, 1995, the appellants herein had no objection for setting aside abatement and bringing the legal representatives of the original plaintiff on record, which is evident from the fact that after the death of the original plaintiff Harishchandra Mahale, evidence on behalf of the legal representatives of the plaintiff was led for which no objection was taken on behalf of the defendants. Learned Counsel further submitted that although no specific order was passed allowing the application dated 10th August, 1995 in view of the fact that after the death of Harishchandra, evidence was led on behalf of the legal representatives of the … 14 … plaintiff and also on behalf of the defendants, mere fact that no formal order was passed by the trial court would not be a ground to set aside the decree passed by the trial Court on merits and as such, the lower appellate Court has clearly erred in setting aside the decree and remanding the matter to the trial Court to decide the application dated 10th August, 1995 and depending upon the order proceed to dispose of the suit from that stage. Mrs. Agni further submitted that it was the lower appellate Court who suo motu took this issue regarding the effect of non-passing of the order on the application dated 10th August, 1995 when in fact such an issue was not even raised by the appellants before the lower appellate Court. Learned Counsel further submitted that the fact that the trial Court did not pass formal order on the application dated 10th August, 1995 allowing the application, was a formal defect which could not have any effect on the merits of the decree. In support of this submissions, Mrs. Agni placed reliance upon Section 99 of C.P.C. and submitted that in view of Section 99 of C.P.C., the lower appellate Court could not have set aside the decree passed by the trial Court on merits and remanded the matter to decide the application dated 10th August, 1995 and thereafter proceed to deal with the suit on merits. In support of her submissions, Mrs. Agni … 15 … placed reliance upon the following judgments : (i) Special Land Acquisition Officer Vs. S. V. Durgappa and others; 1997 AIHC 1199 (ii) Madan Naik (Dead by LRs.) and others Vs. Mst. Hansubala Devi and Others; AIR 1981 SC 676. (iii) Bhagwan Swaroop and others Vs. Mool Chand and others; AIR 1983 SC 355. 10. Per contra, Mr. Agha, learned Counsel for the respondents supported that the impugned judgment and order passed by the lower appellate Court and submitted that no fault can be found with the lower appellate Court in remanding the matter to the trial Court to decide the application in as much as in the absence of any formal order by the trial Court allowing the application dated 10th August, 1995, the trial in the suit could not have proceeded and consequently, the decree passed by the trial Court was a nullity. According to the learned Counsel, the approach of the lower appellate Court has perfectly legal. Mr. Agha, in addition to above two judgments placed reliance upon the judgment in the case of Kanailal Manna and others Vs. Bhabataran Santra and others; AIR 1970 Calcutta 99. … 16 … 11. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 12. The first question which arises for consideration is whether Second Appeal filed by the appellants is maintainable under Section 100 of C.P.C. or whether Appeal from Order is maintainable against the said order in terms of Order XLIII, Rule 1(u) of C.P.C. Order XLIII Rule 1(u) of C.P.C. provides that an appeal would lie from any order under Rule 23 or 23-A of Order XLI of C.P.C. remanding the case, where the appeal would lie from the decree of appellate Court. Indisputably, by the impugned judgment and order, the lower appellate Court has remanded the matter to the trial Court and against the impugned judgment and order an appeal would lie before this Court. Therefore, in terms of Order XLIII, Rule 1(u) of C.P.C., the impugned judgment and order is appelable. According to Mrs. Agni, the appellants have preferred Second Appeal since the lower appellate Court has chosen to draw the decree. Filing of an appeal does not depend upon drawing up a decree by the lower appellate Court and in my considered opinion, the lower appellate Court has clearly erred in drawing up the decree after deciding the appeal not on merits but after considering … 17 … the following point for determination : “Whether the trial Court could have proceeded to record evidence and pass the impugned judgment and order and decree without deciding the application for setting aside abatement ?” 13. Since the lower appellate Court chose to dispose of the appeal not on merits but on the above point, the lower appellate Court could not have drawn the decree. However, the mere fact that the lower appellate Court chose to draw the decree would not entitle the appellants to file Second Appeal against the impugned judgment and order. Remedy of the party has to be decided in terms of the provisions of law. In view of clear language of Order XLIII Rule 1(u) of C.P.C., it is evident that against the impugned judgment and order only Appeal from Order lies. No doubt, Second Appeal was admitted after hearing both sides, but the fact remains that at the time of final hearing of the appeal, the learned Counsel appearing for both sides have fairly submitted that the appropriate remedy for the appellants would be Appeal from Order and not Second Appeal. In my considered opinion also against the impugned judgment and order Appeal from Order would be maintainable. … 18 … 14. The next question which arises for consideration is whether leave deserves to be granted to the appellants to convert Second Appeal into Appeal from Order. Mrs. Agni is justified in placing reliance upon the judgment of the Apex Court in the case of Nawab Ali Khan (supra) in which the Apex Court has observed thus : “48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out. ” 15. In the present case, Second Appeal was admitted on 6th February, 2003 and as such, the appellants cannot be now relegated to remedy of Appeal from Order after almost period of 8 years. Moreover, the appellants have filed the appeal within a period of limitation prescribed for Appeal from Order. In addition, it is also well settled that … 19 … jurisdiction under Section 100 of C.P.C. is very restricted whereas, jurisdiction of this Court dealing with Appeal from Order under Order XLIII of C.P.C. is wide, though in Appeal from Order from an order of remand by the lower appellate Court, jurisdiction of this Court is comparatively restricted. Be that as it may, it would be travesty of justice at this stage to non-suit the appellants and relegate them to remedy of Appeal from Order, more particularly having regard to the fact that the appeal was admitted in the year 2003. I, therefore, deem it appropriate to permit the appellants to convert Second Appeal into Appeal from Order. Accordingly, the prayer made on behalf of the appellants for conversion is granted. Registry to register the matter as Appeal from Order. 16. In the case of Jagdish Abhyankar (supra), the Full Bench of this Court while dealing with maintainability of Letters Patent Appeal, has held that the label or the nomenclature of the application or the petition should not matter and after seeing the substance or contents of the application if it is possible to grant relief under the some other provision of the statute, such a relief should not be denied to a party. However, it is material to note that such a … 20 … recourse is taken only when it is found that the relief asked for cannot be granted under the provisions under which jurisdiction of the Court or Tribunal is invoked muchless when the result would be to deprive the party the right of appeal provided against the order passed under such a provision. In view of the said judgment, it would be unfair to relegate the appellants at this stage to remedy of Appeal from Order by dismissing Second Appeal on the ground that it is not maintainable. Perusal of the impugned judgment and order discloses that the lower appellate Court held that in the absence of any formal order having been passed by the trial Court granting application dated 10th August, 1995, the trial Court could not have proceeded with the matter and consequently, the decree passed by the trial Court is a nullity. Dealing with the appeal preferred by the legal representatives of the original plaintiff, the lower appellate Court held that though they were not brought on record, they had a right to file the appeal after seeking leave from the Court and leave is deemed to have been granted by the lower appellate Court. I fail to understand as to how the lower appellate Court could have recorded such a finding. Admittedly, no formal application was filed by the legal representatives of the original plaintiff seeking leave to file … 21 … an appeal on the ground that their rights were affected. It is also pertinent to note that the respondents herein, who were the appellants before the lower appellate Court had not taken the point specifically either in the memo of appeal or during the course of arguments that the decree was liable to be set aside on the ground that no formal order was passed on the application dated 10th August, 1995. The lower appellate court chose to take suo motu cognizance of this fact and chose to pass the order after giving an opportunity of being heard to the parties. At this stage, it is pertinent to note that although no formal order was passed by the trial Court on the application dated 10th August, 1995, the legal representatives of the original plaintiff were represented by Advocate William D'Costa, and the legal representatives chose to examine three witnesses