The present appeal is against judgment and order
dated 5.7.2014 whereby learned Principal District Judge, Gondia
in Regular Civil Appeal No.50 of 2013 was pleased to remand the
proceedings to the trial Court with a direction to the trial Court
to frame the issue in respect of custom pleaded by the plaintiff in
paragraph No.3A of the plaint. Learned trial Judge was further
directed to frame specific issue in respect of validity of the
customary divorce in Teli community and to deal with the same
to hear and decide the suit expeditiously within a period of three
months. According to learned counsel for the appellant, the trial
Court had framed the issue, thus :
Does the plaintiff prove that she is legally
wedded wife of deceased Khushal and a
member of joint Hindu family of
Pandurang?
According to learned counsel for the appellant the said
issue was comprehensive and specific issue as to validity of
customary divorce amongst Teli community was not necessary.
He has placed the reliance in the case of Kannam (Dead) by
L.Rs. and anr. ..vs.. V.S. Pandurangam (Dead) by L.Rs. and
Ors. reported at AIR 2008 SC 951. Learned counsel points out
to paragraph Nos.11 and 12 of the ruling cited (supra) to canvass
his submission that even if no specific issue has been framed but
if the parties are aware of that issue and have led evidence on it,
the Appellate Court should not interfere with the findings of the
trial court.
Learned counsel making reference to the observations
in paragraph No.6 in the case of Nedunuri
Kameswaramma ..vs.. Sampati Subha Rao, reported at AIR
1963 SC 884(1) submits that since the parties went to trial fully
knowing the rival case and led all the evidence not only in
support of their contentions but in refutation of those of the other
side, it cannot said that the absence of an issue was fatal to the
case, or that there was mixtrial which vitiates proceedings.
Learned counsel thus submits that there is no need to remand
the matter back to the trial Court.
3. The ruling in the case of Kannam (Dead) by L.Rs. and
anr cited (supra) was in respect of Civil Appeal Nos.54725475 of
2001 before the Apex Court and the Court was considering the
cases of Madras High Court in second appeal while the ruling in
the case of Nedunuri Kameswaramma the Apex Court was
considering the special leave against a judgment in second
appeal of the High Court of Andhra Pradesh. Here, in the
present case, it appears that no specific issue was framed by the
trial Court regarding validity of the customary divorce in Teli
community to which the parties belong. The issue was material
but was not specifically framed in the facts and circumstances of
the present case. Therefore, learned District Judge found that no
specific issue was framed regarding validity of the customary
divorce in Teli community. Therefore, the parties cannot have
full idea while the proceeding was pending in the trial Court to
lead necessary evidence regarding validity of customary divorce
in Teli community. Unless the parties can be imputed with
notice as to the issue of validity of the customary divorce
permitted in Teli community as per customs prevalent in it, such
customs could not have been established to the satisfaction of the
trial Court. The parties must be put to notice of the specific issue
framed which may enable the parties to avail of the opportunity
to prove validity of customary divorce in Teli community. The
issue which was framed to the effect that, “does the plaintiff
prove that she is legally wedded wife of deceased Khushal and a
member of joint Hindu family of Pandurang?” was not
comprehensive enough to impute notice to the parties to prove
whether the customary divorce is valid amongst Teli community.
That being so, since the trial Court had partly decreed the suit
and restrained defendant Nos.1 to 4 by permanent injunction
from disturbing peaceful possession of plaintiff over two rooms of
the house no.506 at village Murri without following due process
of law, in appeal the issue as to validity of the customary divorce
in Teli community was under consideration and the appellate
Court found that there was no such specific issue framed by the
trial Court. Therefore, it would be in the larger interest of justice
if the parties are made aware that they were required to
establish validity of the customary divorce in Teli community
and they were given full opportunity by learned appellate Judge
to approach the trial Court so as to frame the specific issue and
call upon the parties to lead necessary evidence in support of
their contentions and then to decide the suit finally. There was
nothing wrong in the impugned judgment and order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.3 OF 2015
Sitabai Wd/o Pandurang Yerne
Vs
Durgabai wd/o Khushal Yerne
CORAM : A. P. BHANGALE, J.
DATE : JULY 6, 2015
Citation:2016(4) ALLMR 316
1. Heard learned counsel for the rival parties. By consent
of learned counsel for both the parties the matter is taken up for
final hearing.
2. The present appeal is against judgment and order
dated 5.7.2014 whereby learned Principal District Judge, Gondia
in Regular Civil Appeal No.50 of 2013 was pleased to remand the
proceedings to the trial Court with a direction to the trial Court
to frame the issue in respect of custom pleaded by the plaintiff in
paragraph No.3A of the plaint. Learned trial Judge was further
directed to frame specific issue in respect of validity of the
customary divorce in Teli community and to deal with the same
to hear and decide the suit expeditiously within a period of three
months. According to learned counsel for the appellant, the trial
Court had framed the issue, thus :
Does the plaintiff prove that she is legally
wedded wife of deceased Khushal and a
member of joint Hindu family of
Pandurang?
According to learned counsel for the appellant the said
issue was comprehensive and specific issue as to validity of
customary divorce amongst Teli community was not necessary.
He has placed the reliance in the case of Kannam (Dead) by
L.Rs. and anr. ..vs.. V.S. Pandurangam (Dead) by L.Rs. and
Ors. reported at AIR 2008 SC 951. Learned counsel points out
to paragraph Nos.11 and 12 of the ruling cited (supra) to canvass
his submission that even if no specific issue has been framed but
if the parties are aware of that issue and have led evidence on it,
the Appellate Court should not interfere with the findings of the
trial court.
Learned counsel making reference to the observations
in paragraph No.6 in the case of Nedunuri
Kameswaramma ..vs.. Sampati Subha Rao, reported at AIR
1963 SC 884(1) submits that since the parties went to trial fully
knowing the rival case and led all the evidence not only in
support of their contentions but in refutation of those of the other
side, it cannot said that the absence of an issue was fatal to the
case, or that there was mixtrial which vitiates proceedings.
Learned counsel thus submits that there is no need to remand
the matter back to the trial Court.
3. The ruling in the case of Kannam (Dead) by L.Rs. and
anr cited (supra) was in respect of Civil Appeal Nos.54725475 of
2001 before the Apex Court and the Court was considering the
cases of Madras High Court in second appeal while the ruling in
the case of Nedunuri Kameswaramma the Apex Court was
considering the special leave against a judgment in second
appeal of the High Court of Andhra Pradesh. Here, in the
present case, it appears that no specific issue was framed by the
trial Court regarding validity of the customary divorce in Teli
community to which the parties belong. The issue was material
but was not specifically framed in the facts and circumstances of
the present case. Therefore, learned District Judge found that no
specific issue was framed regarding validity of the customary
divorce in Teli community. Therefore, the parties cannot have
full idea while the proceeding was pending in the trial Court to
lead necessary evidence regarding validity of customary divorce
in Teli community. Unless the parties can be imputed with
notice as to the issue of validity of the customary divorce
permitted in Teli community as per customs prevalent in it, such
customs could not have been established to the satisfaction of the
trial Court. The parties must be put to notice of the specific issue
framed which may enable the parties to avail of the opportunity
to prove validity of customary divorce in Teli community. The
issue which was framed to the effect that, “does the plaintiff
prove that she is legally wedded wife of deceased Khushal and a
member of joint Hindu family of Pandurang?” was not
comprehensive enough to impute notice to the parties to prove
whether the customary divorce is valid amongst Teli community.
That being so, since the trial Court had partly decreed the suit
and restrained defendant Nos.1 to 4 by permanent injunction
from disturbing peaceful possession of plaintiff over two rooms of
the house no.506 at village Murri without following due process
of law, in appeal the issue as to validity of the customary divorce
in Teli community was under consideration and the appellate
Court found that there was no such specific issue framed by the
trial Court. Therefore, it would be in the larger interest of justice
if the parties are made aware that they were required to
establish validity of the customary divorce in Teli community
and they were given full opportunity by learned appellate Judge
to approach the trial Court so as to frame the specific issue and
call upon the parties to lead necessary evidence in support of
their contentions and then to decide the suit finally. There was
nothing wrong in the impugned judgment and order.
4. In view of above, I do not find any impropriety or
illegality in the order impugned in this appeal so as to disturb or
interfere with the impugned order as both the parties will have
full opportunity to lead necessary evidence in the trial Court to
invite the decision on merits in respect of their rival contentions.
The appeal is, therefore, dismissed with costs.
JUDGE
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