ANANTRAO GANPARTRAO PATIL AND ORSversusSHANTILAL KANTILAL PATIL AND ORS

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIRCUIT BENCH AT KOLHAPUR
                                           CIVIL APPELLATE JURISDICTION

                                           APPEAL FROM ORDER NO. 16 OF 2026
                                                        WITH
                                         INTERIM APPLICATION NO. 4086 OF 2025
                                                          IN
                                           APPEAL FROM ORDER NO. 16 OF 2026

                      Anantrao Ganpatrao Patil (since deceased) ]
                      through his Legal Heirs, Suman Anantrao    ]
                      Patil and others                           ]      Appellants
                             Vs.
                      Shantilal Kantilal Patil and others        ]      Respondents
                                                          …..
         Digitally
         signed by
         SHAILAJA     Mr. Sarang Satish Aradhye Advocate for Appellants.
SHAILAJA SHRIKANT
SHRIKANT HALKUDE
HALKUDE Date:
         2026.06.23
         10:51:39
         +0530
                      Mr. Shardul Diwan, Advocate for Respondent No.1.
                                                       …..
                                                       CORAM: SANDESH D. PATIL, J.
                                                       DATED: 22nd JUNE 2026.
                      P. C. :

                      1.         Heard Mr. Aradhye, learned counsel appearing for the appellants

                      as well as learned counsel appearing for respondent No.1.



                      2.         The appellants have circulated this matter. The challenge in the

                      present appeal is to the judgment dated 4th September 2024 passed by

                      the learned District Judge–2, Barshi, Solapur in Regular Civil Appeal

                      No.98 of 2018 whereby ‘no written statement’ order dated 18 th June,



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2002 passed against present respondent No.1 who was defendant No.1

was set aside, subject to payment of costs of Rs. 10,000/-, and the

matter was remanded to the Trial Court for fresh adjudication with a

direction to dispose of the suit within eight months from the date of the

said order.



3.         Mr. Aradhye, learned counsel for the appellants, contended that

the learned Appellate Court erred in invoking the provisions of Order

XLI Rules 23 and 23-A of the Code of Civil Procedure, 1908 ("CPC"). He

submitted that, instead of remanding the matter to the Trial Court, the

Appellate Court ought to have decided the appeal on its own merits.

According to him, even assuming that certain issues had not been

framed by the Trial Court, the Appellate Court was vested with powers

under the CPC to frame the necessary issues and adjudicate the matter

finally, rather than directing a remand. In support of his submission, he

relied upon the judgment of this Court in case of Rameshlal

Gurudasmal         Adwani,   Since   deceased   by   his   legal   heir      and

representatives, Vinod Rameshlal Adwani Vs. Gajanan Dadoba Pawar

and others, Appeal From Order No.874 of 2016 decided on 24 th July,



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2025. He invited my attention to paragraphs 18 and 19 to buttress his

submission that the remand order could not have been passed and that

the Appellate Court ought to have decided the matter on merits without

remanding it to the learned Appellate Court. Learned counsel for the

appellants prayed for allowing the appeal and setting aside the

impugned judgment passed by the Appellate Court.



4.         Mr. Diwan, learned counsel appearing for Respondent No. 1,

supported the impugned judgment. He submitted that, pursuant

thereto, the written statement has already been filed, issues have been

framed, and the suit is ripe for trial. According to him, the impugned

judgment suffers from no infirmity and, therefore, calls for no

interference in exercise of the jurisdiction of this Court.



5.         Heard learned counsel for the respective parties. In this case,

defendant No.1/respondent No.1 herein though appeared before the

Trial Court had not filed the written statement. He urged before the

Appellate Court that his written statement ought to have been taken on

record. He furnished reasons as to why he could not file the written



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statement. Learned Appellate Court was convinced by the reasons and

set aside ‘no written statement’ order dated 18 th June, 2002 passed

against respondent No.1 herein who was defendant No.1 in Regular

Civil Suit No.287 of 2000 by imposing costs of Rs.10,000/-. This

exercise was undoubtedly carried out under the provisions of Section

105 of the C.P.C. The said order of allowing defendant No.1 to file

written statement on record cannot be termed as perverse order.

Defendant No.1 had acted in terms of the said order. The Appellate

Court had the power to pass such an order under Section 105 of the

Code of Civil Procedure. According to the learned counsel, the order

setting aside the 'no written statement' order does not warrant

interference by this Court.



6.         Once this Court comes to the conclusion that the impugned order

is just, proper and reasonable, the next question that falls for

consideration is whether issues are required to be framed and the

matter could be remanded for trial. The learned Appellate Court has

rightly adopted such a course by exercising the powers conferred under

Order XLI Rules 23 and 23-A of the Code of Civil Procedure, 1908.




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7.         The submission of Mr. Aradhye that the learned Appellate Court

ought to have framed the issues itself and decided the appeal without

remanding the matter to the Trial Court cannot be accepted,

particularly in view of the fact that no written statement had been filed

before the Trial Court. Although the written statement has now been

filed, issues are yet required to be framed and a retrial has become

necessary. The learned Appellate Court was conscious of the time that

would be consumed in undertaking such an exercise and has, therefore,

appropriately directed the Trial Court to conclude the trial within a

stipulated time frame. The judgment relied upon by the learned counsel

for the appellants in Rameshlal Gurudasmal Adwani (since deceased)

through his legal heirs and representatives, Vinod Rameshlal Adwani

(supra) does not advance the appellants’ case. It is undoubtedly well

settled that the power of remand should not be exercised by an

Appellate Court as a matter of routine. However, the said decision is

distinguishable on facts and has no application to the present case for

the reasons recorded in the foregoing paragraphs.



8.         In view of the above, the following order is passed:




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                                       :O R D E R :

           (i)     Appeal from Order stands dismissed.



           (ii)    In light of dismissal of Appeal from Order, nothing

           survives in the Interim Application, hence, the same also

           stands dismissed.



           (iii)   Since the Appellate Court has already directed the

           Trial Court to conduct an expeditious hearing of the suit,

           this Court further requests the Trial Court to conclude the

           hearing and dispose of the suit as expeditiously as possible,

           and preferably within a period of six months from the date

           of receipt of this order.


                                                      [SANDESH D. PATIL, J.]




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