1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE WRIT JURISDICTION WRIT PETITION NO. 4041 OF 2009 Madhavlal N. Pittie. ... Petitioner V/s. Manik Chand Jain & Anr. ... Respondents .................. Shri. A.V. Anturkar Senior Counsel a/w Ms. D.A. Chhapgar i/b M/s. D.J. Kadin and Company for Petitioner. Shri. Rajesh Patil for Respondent No. 1. .................. CORAM : S. C. DHARMADHIKARI, J DATE : 16th June, 2009. P.C. 1. The Petitioner is the original Respondent No. 1 / Plaintiff in Appeal No. 312 of 2007, which is filed by the respondent – original Defendant No. 2, who is the original Defendant No. 1. 2. The appeal of the Respondent No. 1 – Appellant was directed against the judgment and decree of the trial court in R.A.E. 3747 / 1986. The said suit was decreed on 06 th February, 2007. Aggrieved by that judgment and decree, the Respondent No. 1 to this Writ Petition, filed the subject appeal. 2 3. When the appeal was being heard, the application was made by the first respondent for amendment of the Memo of appeal. In fact, the application reads as if it is filed only for incorporating additional grounds in the Memo in appeal, but if the same is considered in the light of the prayers, it is apparent that the respondent is desirous of framing additional Issues in the suit. The pleas pertain to the jurisdiction of the trial court, limitation inasmuch as the claim of the petitioner is time barred and there was no cause of action for suit. 4. Reading the contents of the application, to avoid delay, the petitioner’s advocate in the lower Appellate Court consented to the amendment. In the light of the consent granted the Appellate Court allowed the application and framed issues on the basis of the amendment to the Memo of appeal. However, while framing these issues the lower Appellate Court has held that the issues required to be tried and parties have to lead evidence. Therefore it remanded the matter to trial court for trying the additional issues . 5. The Petitioner applied for review of that order and the review application is dismissed. Aggrieved by this order the present Writ Petition. 6. I have heard Shri. A.V. Anturkar learned counsel for the petitioner and the learned counsel for the respondent No. 1 at some length. Presence of second respondent is not necessary for disposal of this Writ Petition. 7. From perusal of the order passed by the lower Appellate Court and the contents of the Application Exhibit – 34 so also the consent granted by the petitioner’s advocate, I am of the opinion that there is no reason to interfere with the order under challenge. Therefore, pursuant thereto the issues were framed. The only point of dispute raised is that the petitioner understood the order as if 3 there was no necessity of any amendment or further evidence. The first respondent pleaded that the issues having been framed the matter be remanded in exercise of the inherent power. Therefore, lower Appellate Court remanded the matter. 8. Proceeding on the basis of the Appellate Court order and directions and contending that if it does not assign any reasons, a review application is filed and while dealing with the same, the court below has held that the petitioner has failed to point out any error apparent or failure of justice. The matter proceeded on the petitioner’s consent and in the facts peculiar to this case, no case for interference in writ jurisdiction is made out. However, the lower Appellate Court should have been careful enough in not allowing the parties to delay the matter. The suit was of 1986 and was decreed after 11 years. In these set of circumstances, after this matter was heard at some length, I am of the opinion that the following order will meet end of the justice; a. The order and direction of the trial court stands modified to the extent that the issues of jurisdiction and cause of action as framed shall be decided on the basis of the available material before lower Appellate Court and there would not be any necessity of remand the matter or permitting parties to adduce any additional evidence. Therefore, the direction of remand to this extent is set aside. b. The remand to the trial Court shall be limited and restricted to the issue on limitation and both sides are permitted to lead evidence on that issue alone. The trial court to permit parties to adduce evidence and remit its 4 findings to the lower Appellate Court as directed under the impugned order within a period of two months from today. c. After the finding is received by the lower Appellate Court, the appeal should proceed and the lower Appellate Court to decide the Appeal expeditiously. Parties to appear before the trial Court on 25 th June, 2009 at 11:00 a.m. All contentions are kept open. d. Petition disposed off. S. C. DHARMADHIKARI. ndm/wp4041.09