Monday, 29 April 2019

Whether appeal lies against finding given in judgment of trial court?

 I have considered the submissions made on behalf of
the parties and have also perused the impugned order dated 21.07.2007.
On a reading of the order dated 21.07.2007, it is clear that the
first appellate Court committed gross illegality in rejecting the
application filed by the applicants for dismissal of the appeal. It is well
settled that an appeal could be filed only by a person who is
prejudicially or adversely affected by a decree and an appeal lies
only against a decree and not a finding. In this case, the decree is
passed by the trial Court only against the non-applicant no.2. The nonapplicant
no.2 has not, however, preferred any appeal against the
decree passed by the trial Court. Actually, no relief was sought by
the applicant against the non-applicant no.1 in the suit instituted by

them. In fact, though it was pleaded by the applicants in the suit that
the non-applicant nos.1 and 2 had broken a portion of the partition
wall in between the premises let out to the non-applicant nos.1 and 2,
the trial Court had decided that issue against the applicants with the
result that the trial Court had not rendered any adverse finding against
the non-applicant no.1. Thus, there was neither an adverse finding
against the non-applicant no.1 nor was the decree passed against the
non-applicant no.1. In these circumstances, the first appellate Court
ought to have held that the appeal filed by the non-applicant no.1
was not tenable. The first appellate Court, however, erroneously
rejected the application filed by the applicants on the ground that
the appeal is a continuation of the suit and to avoid further
complications, it was necessary to decide the appeal on merits. The
approach of the first appellate Court in deciding the application filed by
the applicants was not just and proper. The law laid down in judgment
reported in AIR 2003 SC 1989 and relied on by the learned counsel for
the applicants clearly applies to the case in hand and supports the case of
the applicants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Civil Revision Application No. 109/2007

 Satyanarayan Bisanlal Agrawal, Vs  Dr. Veena w/o Rajendrakumar Dhore,

CORAM : SMT. VASANTI A. NAIK, J.
DATE : 16 t h JANUARY, 2009 .
Citation: 2009(5) ALLMR 431

ADMIT. The civil revision application is heard finally.
2. Few facts giving rise to the civil revision application are stated
thus-----
The applicants had filed Small Cause Suit bearing no.123/2001
against the non-applicants for recovery of possession under Section 16(a)
and 16(b) of the Maharashtra Rent Control Act. It was the case of the
applicants that the non-applicant no.2 was occupying the premises as the
tenant thereof and the applicants required the premises for their bona fide
need. A decree for possession of the suit premises was claimed only
against the non-applicant no.2. It was stated in the suit that to the
northern side of the shop premises leased out to the non-applicant no.2,
there was another shop premises leased out by the applicants in favour of
the non-applicant no.1. According to the applicants, both, the nonapplicant
nos.1 and 2, had, without the consent and permission of the
applicants, broken a portion of the partition wall in between the two shop
premises.

3. The suit filed by the applicants was decreed by the 5th Joint
Civil Judge (Junior Division), Amravati, by a judgment dated 31.03.2006.
The trial Court held that the applicants bonafide required the suit
premises occupied by the non-applicant no.2 for their occupation and the
non-applicant no.2 should, therefore, handover the vacant possession of
the suit shop to the applicants within a period of two months from the
date of the order. The Court further held that the plaintiffs had not
succeeded in proving that the non-applicant nos.1 and 2 had altered the
premises without their knowledge.
It is necessary to note that though a decree was passed against
the non-applicant no.2, the non-applicant no.2 did not challenge the
same and the non-applicant no.1, the original defendant no.2, preferred
an appeal against the judgment and decree dated 31.03.2006 before the
District Judge, Amravati.
According to the applicants, the appeal filed by the nonapplicant
no.1 was not tenable as an appeal could lie only against the
decree and also because there was no adverse finding against the nonapplicant
no.1 in the judgment and decree passed by the trial Court. The
applicants, therefore, filed an application for the dismissal of the appeal.

The first appellate Court, however, by the impugned
order dated 21.07.2007, rejected the application filed by the applicants
for the dismissal of the appeal on the ground that it was not
tenable.
4. Shri A.K. De, the learned counsel for the applicants, submitted
that the first appellate court committed a serious error in rejecting the
application filed by the applicants and holding that the appeal was
tenable as it was a continuation of a suit. According to the learned
counsel for the applicants, the Court committed an illegality in holding
that the appeal could not have been dismissed for the sake of avoiding
further complications between the parties. The learned counsel for the
applicants relied on the judgment reported in AIR 2003 SC 1989 to
substantiate the submission that it is only an aggrieved person, who can
file an appeal and an appeal lies only against a decree and not a mere
finding in the judgment.
5. Shri B.M. Waranashiwar, the learned counsel for the nonapplicants,
supported the order passed by the first appellate Court on

21.07.2007 and submitted that this Court should not interfere with the
order passed by the appellate Court on 21.07.2007 as the appellate Court
has not committed any illegality or material irregularity while deciding
the issue of the tenability of the appeal. It is submitted on behalf of the
non-applicants that the appeal was tenable in law and hence, the
application filed by the applicants was rightly rejected.
6. I have considered the submissions made on behalf of
the parties and have also perused the impugned order dated 21.07.2007.
On a reading of the order dated 21.07.2007, it is clear that the
first appellate Court committed gross illegality in rejecting the
application filed by the applicants for dismissal of the appeal. It is well
settled that an appeal could be filed only by a person who is
prejudicially or adversely affected by a decree and an appeal lies
only against a decree and not a finding. In this case, the decree is
passed by the trial Court only against the non-applicant no.2. The nonapplicant
no.2 has not, however, preferred any appeal against the
decree passed by the trial Court. Actually, no relief was sought by
the applicant against the non-applicant no.1 in the suit instituted by

them. In fact, though it was pleaded by the applicants in the suit that
the non-applicant nos.1 and 2 had broken a portion of the partition
wall in between the premises let out to the non-applicant nos.1 and 2,
the trial Court had decided that issue against the applicants with the
result that the trial Court had not rendered any adverse finding against
the non-applicant no.1. Thus, there was neither an adverse finding
against the non-applicant no.1 nor was the decree passed against the
non-applicant no.1. In these circumstances, the first appellate Court
ought to have held that the appeal filed by the non-applicant no.1
was not tenable. The first appellate Court, however, erroneously
rejected the application filed by the applicants on the ground that
the appeal is a continuation of the suit and to avoid further
complications, it was necessary to decide the appeal on merits. The
approach of the first appellate Court in deciding the application filed by
the applicants was not just and proper. The law laid down in judgment
reported in AIR 2003 SC 1989 and relied on by the learned counsel for
the applicants clearly applies to the case in hand and supports the case of
the applicants.

7. In the result, the civil revision application is allowed. The
order passed by the Ad-hoc District Judge-5, Amravati on 21.07.2007 is
hereby set aside. The application, Exh.13, in Regular Civil Appeal
No.72/2006 is hereby allowed thereby dismissing the Regular Civil
Appeal No.72/2006 filed by the non-applicant no.1. In the facts of the
case, there would be no order as to costs.
JUDGE

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