1 S.A. 437/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 437/2011 Daud khan Mussa khan, Age : 50 years, Occu. Agri. R/o Islampura (Bagla), Parli Tq. Parli, District : Beed. ...Appellant. (Defendant No.1) Vs. 1 Sk. Dastagir Sk. Issamoddin (Died) L.Rs. Sk. Mohammad Sk. Khaja, Age : 66 years, Occu. Agri. R/o Parli District : Beed. Respondent No.1 (Orig. plaintiff) 2 Sk. Immamoddin s/o Sk. Dadamiya, Age : 43 years, Occu. Agri. R/o Islampura Bangla, Parli now at Gangakhed District : Parbhani. ...Respondent No.2. (Orig. deft. No.2) Mr. Vivek Bhavthankar, Advocate for the appellant. Mr. G.R. Syed, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 14th Sept., 2011. PER COURT: 1. Heard. 2. The appellant who was original defendant No.1 is challenging the judgment and decree passed by the learned judge of the first appellate Court, reversing one finding recorded by the learned judge of the trial Court. The main ground for challenge is that the appellant and his advocate were not present when the appeal was heard. According to the appellant, his advocate could not go before Court because he was not aware that the appeal was pending before the 2 S.A. 437/2011 said Court. Even the learned judge of the first appellate Court in clear terms mentioned in the judgment that despite of sufficient opportunity given to the advocate appearing for the appellant, none came before him and so after hearing submissions only of the learned advocate appearing for the respondent No.1, he decided the case and passed the judgment. The substantial question of law that arises in this appeal is : Since the appellant did not get an opportunity to plead his case before first appellate Court, whether the case should be remanded back to the first appellate Court ? The learned advocate appearing for the respondent/plaintiff opposed the remand of the case. He said that the appellant’s advocate due to his own negligence, did not remain present before the learned judge of the first appellate Court and so the appellant should not be given an opportunity to re-argue the case before the first appellate Court. On the other hand, he said that although the appellant’s advocate was absent before the learned judge of the first appellate Court, the learned judge examined the case thoroughly even from point of view of the appellant and therefore, there is practically no prejudice caused to the appellant. I do not agree with this submission because even though the judgment delivered by the learned judge of the first appellate Court is well reasoned, it can not definitely be said that the point of view of the appellant was appreciated and taken into account while delivering the judgment because the advocate of the appellant was absent. It may be a case of negligence on the part of the learned advocate but the appellant should not be punished for such lapse on the part of his advocate. The appeal should therefore, 3 S.A. 437/2011 succeed, but not without putting the appellant to certain terms. In my view, the cost of Rs.10,000/- is sufficient consolation to the respondent/plaintiff if he is asked to argue the case once again before the learned judge of the lower appellate Court. ORDER I. The appeal is allowed. II. The impugned judgment and order passed by the first appellate Court is set aside and Regular Civil Appeal No. 49/1996 is revived and is remanded back to the learned judge of the first appellate Court. III. The appellant shall pay Rs.10,000/- as cost to the respondent no.1 Sk. Mohammad Sk. Khaja or his advocate within two weeks, failing which the appeal shall stand dismissed. IV. The parties shall maintain status quo, in respect of possession as well as City survey record of the suit property. V. Civil Application No. 7709/2011 is disposed of. [A.V. NIRGUDE,J.] ts k/2011/Sept14/sa437.11ok