(1) SA. 474.1989 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 474 OF 1989 Asaram S/o Gamaji Ambhore .. Appellant VERSUS Vithal S/o Ahilaji Ambhore .. Respondent Mr.N.N. Shinde, Advocate for the appellant Mr.G.K. Kshirsagar, Advocate for the respondent no.1 Mr. R.V. Gore, Advocate for the respondent no.2 ... CORAM : A.V. NIRGUDE, J. DATED : 25TH FEBRUARY, 2010 ORAL ORDER:- 1] This second appeal challenges the concurrent judgments and decrees passed by the Courts below which in a way are quite peculiar. The appellant was the original defendant. The original respondent sued him for declaration that certain registered sale deed executed by the respondent's deceased father in favour of the appellant (original defendant) was void and for recovery of possession. . The case of the respondent-plaintiff was as under:- . Agricultural land gat no. 178 admeasuring 3A 14G at Shiwar Digar, Tq. Kannad, Dist. Aurangabad (2) SA. 474.1989 was originally owned and possessed by his father Ahelaji. This land was joint family property of which the respondent was a coparcener alongwith his father. The respondent's father Ahelaji sold this land on 1.9.1984 to the appellant. He could get the sale deed executed because Ahelaji was addicted to liquor and was unable to know the implications of his action due to old age also. Ahelaji died in November, 1984 and so, in 1985 the suit was filed for declaration that the sale deed was null and void for want of consideration etc. and not operative against the respondents. On this cause of action, the respondents sought possession of the suit land. The appellant appeared in the Court and sought many adjournments. He did not file written statement, neither he appeared before the Court. The learned Judge of the trial Court proceeded against him ex- parte and directed the respondents to file an affidavit in support of their case and relying on such affidavit which went unchallenged on record, the learned Judge of the trial Court decreed the suit. The appellant then took the matter to the first appeal Court. It was the case of the appellant there ,that he did not file the written statement under bonafide mistake. He said that after filing of the suit one of the original respondents Laxman expired. He expected the plaintiff/other respondents to bring the legal representatives of original respondent no.1 Laxman, (3) SA. 474.1989 on record. He then said that since necessary steps were not taken for bringing the LRs. of deceased Laxman on record, he thought that the suit would be dismissed and under such impression he did not attend the case. The learned Judge of the first appeal Court held that the appellant could not prove that he was diligent in prosecuting the case and his failure to file written statement was un-intentional and therefore he did not deserve an opportunity to file the same. In addition to this, the learned Judge of the first appeal Court also held that in view of the provisions of Order 8 Rule 5 and 10 of the Code of Civil Procedure, the Court was empowered to pass the judgment on the defendant's failure to file the written statement. 2] The question before me is whether the learned Judge of the first appeal Court committed gross error in appreciating the case of the appellant, which resulted into serious miscarriage of justice. I think the learned Judge could not have discussed the facts which the appellant pleaded in the appeal memo about the reasons as to why he could not file written statement and why he remained absent etc. The factual assertions of the appellant in the appeal memo could not have been looked into for want of evidence in support of the same. The learned Judge, while rejecting this case also expressed that the appellant had not filed written (4) SA. 474.1989 statement. What was expected to be mentioned in the written statement, was different. The reasons as to why the appellant could not continue to appear before the trial Court and did not file written statement, cannot be related to the contents of the written statement which he did not file. 3] No doubt, provision of Order 8 Rule 5 and 10 of the Code of Civil Procedure, empowers the Court to pass judgment on the basis of the affidavit; even on the basis of the statements made in the plaint which go on record uncontested. But at the first appeal stage which is the last Court on facts, the learned Judge should have liberally utilised his discretion by giving an opportunity to the appellant to go back to the lower Court and contest the suit on merits. The learned Judge did not even discuss such possibility in the impugned judgment, which, in my view is a serious error on his part. As said above, as the Judge of the first appeal Court he should have appreciated that the dismissal of the appeal would have curtailed the appellant's valuable rights to immovable property which he had purchased by a registered sale deed. The entire approach of the learned Judge of the first appeal Court was erroneous in dismissing the appeal. (5) SA. 474.1989 4] At this second appeal stage, in my view, this serious error which resulted into gross miscarriage of justice is required to be corrected. This however, should cost the appellant. In my view, cost of Rs.5000/- (Rs. Five Thousand) would be adequate compensation to the respondent-plaintiff. 5] The Second Appeal is allowed. On paying costs of Rs.5000/- to the respondent on or before 5.4.2010, the impugned judgment stands set aside. The R.C.A. No.177 of 1988 stands allowed. The Regular Civil Suit no. 135 of 1985 is remanded back to the trial Court. The trial Court shall give one month time to the appellant to file his written statement from the first date of appearance. The learned Judge shall decide the suit on merits. The appellant-defendant shall file written statement within 4 weeks from the first date of appearance in the lower Court. Sd/- (A.V. NIRGUDE, J.) arp