1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 10. SA/950/2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S. S. Chaudhari, Advocate for appellants. Mr. A.P. Yenegure, h/f Mr. P.S. Patil, Advocate fr respondent no.2. [CORAM : K.U. CHANDIWAL, J ] Date : 31st March, 2010. PER COURT : 1 Dismissal of suit being R.C.S. No. 51/1987 by Civil Judge (Jr. Division), Kej was taken up in R.C.A. No. 267/1988 by original plaintiffs before the learned Additional District Judge, Ambajogai. The grant of decree, setting aside the dismissal is questioned by original defendants in second appeal. 2 2 After extensively arguing the matter, Mr. Chaudhari for appellants/original defendants pointed, the learned first appellate court has formulated two points for determination namely relating to limitation, entitlement for declaration and possession of the plaintiff. While answering point no.2, Mr. Chaudhary has rightly pointed, the learned Additional District Judge, Ambajogai did not answer point no.2. He simply dealt with limitation and closed the chapter. This exercise by the learned Judge is certainly a cruelty, to Provisions of Order 41 Rule 31 of Code of Civil Procedure. The learned judge sitting in appeal, the fact finding court, has more responsibility to evaluate the evidence and consider whether issues formulated by the Court of first instance are answered in legal frame and if not to deal with the same, unfortunately, no such mandatory act is carried. 3 3 During the submissions, both the counsel having realised the above referred difficulty, urged to remand the matter to decide appeal within the time frame. Hence, order. a) The decree in R.C.A. no. 267/1988 dated 31/08/2001 by the learned Additional District Judge, Ambajogai is set aside. b) The leaned Additional District Judge, Ambajogai shall ensure to formulate requisite point and apart from formulation of point, shall discuss the evidence as legally expected and come to any decision, within six months from receiving the record. c) No costs. d) This court has not expressed any opinion on merits of the matter. It is remitted only on the incurable legal lacuna crept in the judgment of the first appellate court. [K.U. CHANDIWAL, J.] tsk/sa950.09 4