Second Appeal No.149 of 2013

4th July, 2014.

Petitioner Counsel: Mr. ROHIT BRAS DE SA
Respondent Counsel: Mr. J. MULGAONKAR

Cases Cited:
Celina Almeida Vs. Minister of Urban Development, Goa and others, 2013(5) ALL MR 586=2013(4) Mah. L. J. 53 [Para 7]

JUDGMENT

JUDGMENT :- Heard Mr. Rohit Bras De Sa, learned Counsel appearing on behalf of the Appellants and Mr. J. Mulgaonkar, learned Counsel appearing on behalf of the Respondent.

2. Admit on the following substantial question of law:-

"Whether the judgment passed by the learned Lower Appellate Court stands vitiated for not giving an opportunity to the parties including the Appellants from advancing oral arguments in support of their respective contentions".

3. Heard forthwith by consent of the learned Counsel appearing on behalf of the respective parties. Mr. J. Mulgaonkar, learned Counsel waives service on behalf of the Respondent.

4. Mr. Rohit Bras De Sa, learned Counsel appearing on behalf of the Appellants pointed out that the matter was heard before the previous learned Presiding Judge on 19.03.2013. Thereafter, the matter was posted for further clarification on 30.04.2013. The learned Counsel further pointed out that on the said day i.e. 30.04.2013, the matter was again posted for further clarification and fixed on 04.06.2013. The learned Counsel further pointed out that the then learned Presiding Judge was transferred and the new incumbent took charge of the matter on 20.06.2013. The learned Counsel further pointed out that without giving an opportunity to the Appellants to advance oral arguments, the matter was posted for judgment on 28.06.2013 and the Appeal preferred by the Respondent came to be allowed. The learned Counsel pointed out that the learned Judge not giving an opportunity to advance oral arguments has resulted in a breach of the principle of natural justice and has gravely affected the case of the Appellant and vitiated the impugned judgment passed by the learned Lower Appellate Court. The learned Counsel has taken me through the roznama of the records of the First Appellate Court and pointed out that it clearly suggests that no opportunity was given to advance oral arguments. Learned Counsel further pointed out that without going into the merits of the case, on this ground alone the impugned judgment deserves to be quashed and set aside.

5. Mr. Mulgaonkar, learned Counsel appearing on behalf of the Respondent stated that though the matter was not orally argued before the new Presiding Judge, nevertheless, the learned Judge, has disposed of the matter on the basis of the written submissions, which were on record. The learned Counsel further pointed out that no jurisdictional error has been committed by the learned Judge as the Appellants have forfeited their right to advance oral arguments. The learned Counsel further pointed out that the Respondent has a good case on merits and as such, the interference with the impugned judgment does not arise.

6. Mr. De Sa, learned Counsel also pointed out that in the meanwhile, the original Defendant No. 1 had expired on 01.03.2013 and no legal representatives were brought on record and the matter was adjourned for taking steps to bring the legal representatives on record. Mr. Mulgaonkar, learned Counsel pointed out that the learned Counsel who was appearing for the original deceased Defendant No. 1, in the appeal before the learned District Judge, had not taken any steps in terms of Order XXII Rule 10 A of the Civil Procedure Code and the Respondent was not aware about the death of the original Defendant No. 1.

7. I have considered the submissions made by the learned Counsel appearing on behalf of the respective parties and I have also gone through the record. The record reveals that when on 19.03.2013, the appeal was fixed for clarification, the case was adjourned and posted to 30.04.2013. Even subsequently, when the matter was fixed on 20.06.2013, the record does not suggests that an opportunity was given to the Appellants to advance oral arguments. Considering that the learned Counsel for the parties had advanced oral arguments before the then Presiding Judge, I find in the interest of justice that the learned Presiding Judge ought to have given an opportunity to the parties to advance oral arguments or at least for clarification if any, with regard to the contentions raised by the parties in the written arguments. It is now well settled that the first appeal is a valuable right of the parties as it is the last Court of fact findings and law involved in the Appeal to be decided. In this connection, this Court in the judgment reported in 2013(4) Mah. L. J. 53 : [2013(5) ALL MR 586] in the case of Celina Almeida V/s Minister of Urban Development, Goa and others, relying upon the judgments of the Apex Court has observed at para 8 thus :

"8. I have carefully considered the submissions of the learned counsel and I have also gone through the records. It is now well settled by the judgments of the Apex Court reported in 2011(2) SCC 258 in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority and others and 2009(14) SCC 690 in the case of Prakash Ratan Sinha vs. State of Bihar and others, that in cases in which the consequences of the disposal of the dispute by the authority constituted in the Act would result in the civil consequences, a party is entitled for an adequate hearing. The Apex Court has even given observation that the written submission is not a substitute to oral submissions as in the course of the oral submissions a party has an opportunity to seek for clarification or clear any doubt in the disposal of the dispute. ..............................."

Taking note of the observations referred to herein above, that written submissions cannot be a substitute to oral arguments, I find that the learned Lower Appellate Court was not justified to pass the impugned judgment as the parties were not given an adequate hearing to advance their respective contentions.

8. In view of the above, I find that the impugned judgment passed by the learned Judge is not sustainable and deserves to be quashed and set aside. The learned Lower Appellate Court as such will decide the appeal preferred by the Respondent afresh after giving an opportunity to both the parties to advance the oral arguments and written arguments, if any. The substantial question of law is answered accordingly.

9. Taking note of the contention of the learned Counsel for the Appellants that the original Defendant No. 1 has expired and that the Appellants will not oppose if, the legal representatives of the original deceased Defendant No. 1, who are Appellants No. 1 to 7 in the present Appeal are brought on record, the Respondent is as such at liberty to file an application to substitute the original deceased Defendant No. 1 in the Appeal before the learned District Court by such legal representatives.

10. Subject to the above, I pass the following :-

ORDER

(i) The impugned judgment and decree dated 28.06.2013 passed by the learned Lower Appellate Court is quashed and set aside.

(ii) Regular Civil Appeal No. 124/2011 is restored to the file of the learned District Judge-2, South Goa, Margao.

(iii) The learned Judge shall proceed to decide the said appeal afresh in the light of the observations made herein above in accordance with law.

(iv) All the contention of the parties on merits are left open.

(v) Parties are directed to remain present before the learned Lower Appellate Court on 25.08.2014 at 10:00 a.m. (vi) The appeal stands disposed of accordingly.

Ordered accordingly.