1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.88/2008 WITH CA NO.9582/2008. ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.RF Totla, Adv. For appellant; Mr.SS Choudhari, Adv. For Resp.Nos. 1, 2B and 3. *** CORAM : K.U.CHANDIWAL ,J. DATE : 30 th November, 2010. ... 1) Heard. 2) Following substantial question of law is formulated, - “Whether appreciation of evidence by the first Appellate court in RCA No.162/1996 warranted re-framing of the issues, and directing the learned CJJD, Kaij, to re-hear RCS No.266/1985, on remand ?” 3) Mr.Choudhari, learned Counsel for respondents/plaintiffs submits that after the order of remand, much water has flown, as his client has made an application for amendment, which has been entertained. Additional issues are framed and affidavit in evidence is also tendered by the litigating parties. The matter is slated for cross-examination. This has been so illustrated in affidavit in reply of Bharat, the 2 plaintiff/respondent. 4) Learned first Appellate Court while remanding the matter indeed did not consider that the issues, which he desired to be framed, were materially identical framed by the learned CJJD. Based on which the parties went on trial and adduced the evidence. 5) The points for determination, formulated in paragraph 8 is in itself very vague. The learned first Appellate court erred in making observations in paragraph 9 about difference in dates, namely, alleged earnest money receipts dated 11.4.1973 and sale deed dated 22.3.1974 and raised a question mark about the plaintiff’s birth. The learned Judge should have been alive to the evidence and documents, wherein, the plaintiff’s date of birth is recorded as 5th May, 1975. If both the dates, referred above, are considered, the plaintiff could not be in womb to stake partition. 6) Taking stock of entire mater, mere order of remand, directing with formulation of issues by the learned first Appellate Court was an undesired exercise. The learned Judge should have considered all the points, coupled with the evidence adduced by the litigating parties and then to arrive at a finding about any necessity to frame issues again. This 3 exercise is lost track of. Without further dissecting merits and rival contentions, it is obvious the order dated 31.7.2008 of the learned 3rd Ad hoc Additional District Judge, Ambejogai, questioned in the present AO, calls for interference. The substantial question of law, formulated above, is answered in favour of the appellants. Hence, order, - 7) The Judgment and order of learned 3rd Ad hoc District Judge, Ambejogai in RCA No. 162/1996 is set aside. The parties to the proceedings shall appear before the learned Judge on 13th January, 2011. The learned Judge will re-hear the appeal on its own merits and decide the same in tune with the evidence that has been adduced and the documents on record. The exercise of disposal of the appeal to be done up to 31st July, 2011. The learned Judge shall not extend unreasonable accommodation to the appellants or the respondents in the appeal. No Costs. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/