{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 13 OF 2010 Madhu s/o Baherji Gunjkar (Died) His Legal Representatives APPELLANTS VERSUS Bhaurao s/o Ganpatrao Patil (Died) His LRs and others RESPONDENTS ....... Mr. S.G.Rudrawar, Advocate for appellant Mr. S.S.Rathi, Advocate for respondents No.1/1 to 1/4 ....... [CORAM : A.V.POTDAR, J.] DATE: 13th April 2010 PER COURT: 1. This Appeal From Order is preferred by the original appellant in RCS No.152/1998 and respondent in Regular Civil Appeal No.53/2002 against the judgment and order dated 21.11.2009 passed by the District Judge-1 Hingoli in Regular Civil Appeal No.53/2002. By the impugned judgment and order, the first appellate court, on the ground that no opportunity was given to respondents No.1/1 to 1/4, set aside the judgment and decree passed in RCS No.152/1998 and remitted the matter back to the trial court for recording of evidence, after giving opportunity to {2} both the parties to lead the evidence and then to decide the matter on merits. 2. Heard learned counsel for the appellants and learned counsel for respondents No.1/1 to 1/4. 3. During the course of submissions, learned counsel took me thorough the impugned judgment of the first appellate court. Learned counsel for respondents No.1/1 to 1/4, placed reliance on the judgment reported in 2004 (4) SCC page 26 in the matter of “Narayan V/s Kumaran”. It is observed in the said judgment that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated under section 100. The appellant under Order 43 Rule 1 clause (u) is not entitled to agitate question of facts as in a first appeal. In view of this aspect, it is contended on behalf of the respondents that considering the grounds raised in the appeal memo, no substantive question of law is framed by the appellants and on this ground alone, this Appeal From Order be dismissed at the stage of admission itself. Apart from it, on fact, my attention is drawn towards the observations in para 18 of the impugned judgment. It is brought to my notice that the predecessor of the respondents expired during the pendency of the suit before the trial court. An application was moved by the present appellants on 03.12.1993 to bring the present respondents on record. The said application was allowed on 08.10.2001. However, after the plaint was amended, without issuing notice to {3} the respondents, the trial court proceeded with the matter and after recording the evidence of the present appellant, decreed the suit. This fact indicates that no opportunity was given to the respondents to participate in the trial which is against the settled principles of law. Considering this aspect, as no substantive question of law is involved in this Appeal From Order and as the same is correctly considered by the first appellate court, in para 18 of the impugned judgment, no interference is required in the impugned judgment and order. 4. In the premise, the Appeal From Order, which is sans merits, stands rejected summarily with no order as to costs. [A.V.POTDAR, J.] drp/B10/ao13-10 {4} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.1494 OF 2010 IN APPEAL FROM ORDER NO. 13 OF 2010 Madhu s/o Baherji Gunjkar (Died) His Legal Representatives APPELLANTS VERSUS Bhaurao s/o Ganpatrao Patil (Died) His LRs and others RESPONDENTS ....... Mr. S.G.Rudrawar, Advocate for appellant Mr. S.S.Rathi, Advocate for respondents No.1/1 to 1/4 ....... [CORAM : A.V.POTDAR, J.] DATE: 13th April 2010 PER COURT: 1. As the Appeal From Order No.13/2010 is dismissed summarily, this civil application does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao13-10