Dealing with a matter, a bench of Justices B R Gavai and K V Vishwanathan said that the appeal in hand filed by one Shivaji deserved to be allowed on the short ground that the second appeal, wherein the present appellant was respondent no 2, was decided even without giving notice to him.

 

Advocate Atul Babasaheb Dakh, the counsel for the appellant, further submitted that even the questions of law which were framed by the Trial Judge were framed during the dictation of the order and the appellant did not have an opportunity to be heard.

 

"Such a practice by the High Court is deprecated by a recent judgment rendered by this Court in the case of Suresh Lataurji Ramteke v Sau Sumanbai Pandurang Petkar and Others, reported in 2023," the bench pointed out.

 

The court set aside the impugned order of the High Court of Judicature at Bombay at Aurangabad, passed on April 7, 2022.

 

"This appeal deserves to be allowed on the short ground that the second appeal, wherein the present appellant was respondent no 2, was decided even without giving notice to the appellant herein," the bench said.

 

Allowing the instant appeal, the court remitted the matter back to the High Court for deciding it afresh in accordance with law.

 

"Since the appeal arises out of a suit filed in the year 2009, we request the High Court to decide the appeal expeditiously, preferably within a period of one year from today," the bench said.

 

In the 2023 judgment, the apex court had said, "A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided".
 

The court had then also said, in the ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below, it had said.