S.B. Shukre, J.

1. Heard. Admit. Heard finally by consent.

2. This appeal challenges the judgment dated 5th November 2014 rendered in Regular Civil Appeal No. 107 of 2000 directing remand of suit to the trial Court for a decision afresh in accordance with law after giving opportunity of adducing evidence to the parties.

3. Civil Suit being Special Civil Suit No. 135 of 1996 was filed by the appellant against the respondent. By this suit, partition and separate possession of the suit property was claimed. Declaration was also sought against the respondent that the Will dated 23.10.1990 was illegal, null and void. It was this will on the basis of which the defendant was claiming ownership in respect of suit property mentioned in Schedule A to the plaint.

4. As the suit proceeded, no instructions pursis was filed by the Advocate for the respondent on 29.6.1999 and it came to be accepted by the trial Court and thereafter the suit was proceeded further in the absence of the respondent in terms of Order 17, Rule 2 of the Code of Civil Procedure. Suit came to be partly decreed on 23.11.1999. The respondent being aggrieved by the judgment and decree, filed an appeal being Regular Civil Appeal No. 107 of 2000 before the Court of District Judge, Wardha. After hearing both sides, learned District Judge found that the judgment and decree rendered in the suit by the trial Court were no judgment and decree in the eye of law as the respondent/original defendant was deprived of the opportunity to lead evidence in his defence. Learned Ad hoc District Judge, Wardha by the judgment and order dated 5.11.2014 remanded the suit back to the trial Court for its trial and decision afresh. Being aggrieved by the same, the appellants/original plaintiffs are before this Court in the present appeal.

5. I have learned counsel for the parties. I have gone through the paper book of this appeal including the impugned judgment and order.

6. It is the contention of learned counsel for the appellants that the 1st appellate court ought not to have exercised its power under Order 41, Rule 23-A of the Code of Civil Procedure in the present case, for it was possible for the 1st appellate court to decide the appeal on merits on the basis of evidence available on record. He submits that ample opportunities were given to the defendant/respondent to lead evidence which he did not avail of and, therefore, giving of yet another opportunity to the respondent to lead evidence would cause great hardship to the appellant and not only that the remand of the suit would have the effect of unsettling the rights vested in the appellant by virtue of grant of decree by the trial Court. He submits that the remand power under Order 41, Rule 23A of the CPC must be exercised sparingly and in the extraordinary circumstances. According to him, this was not a case where extraordinary circumstances for exercise of such a power existed. He places reliance upon the judgment of the learned single Judge of this Court in the case of Beniram Shriram Wani, through his LRs v. Ramchandra Nathalal Gujarathi & ors reported in 2011 (3) Mh. L. J. 545.

7. Learned counsel for the respondent submits that paragraph 9 of the impugned judgment and order is relevant as it summarises the central issue involved in this case in a succinct manner. He submits that no instructions pursis filed by learned counsel for the respondent before the trial Court was accepted by the trial court without following the procedure as prescribed in paragraph 660 (4) of the Civil Manual and, therefore, it fundamentally affected the right of the respondent to prove his defence in the case. He, therefore, submits that there is no need for interference with the impugned judgment.

8. In view of above, the following two questions arise for my consideration :

"(1) Whether the respondent was deprived of adequate opportunity of proving his defence

(2) Whether the 1st appellate court could have decided the appeal on the basis of evidence available on record "

9. On perusal of the impugned judgment and order as well as considering the admitted facts, I am of the view that in the present case, there has been deprivation of adequate and proper opportunity to the respondent to lead evidence in his defence and in the absence on record of the case the material evidence to enable the 1st appellate court to properly decide the contentious issues involved in the suit, the appellate court had no option but to remand the suit.

10. It is not in dispute that initially the respondent was represented by his Advocate and who suddenly on 29.6.1999 filed no instructions puris on record of the suit before the trial Court vide exhibit 24. It is also not in dispute that later on the suit was directed to be proceeded in the absence of respondent in terms of Order 17, Rule 2 of the Code of Civil Procedure. This would mean that the trial Court had accepted the no instructions pursis vide exhibit 24 filed on record by the then learned counsel for the respondent. It would also mean that the trial Court had permitted the then learned counsel for the respondent to withdraw his appearance from the case. Now, the question that arises is, whether such permission could have been granted by the trial Court or not. Certainly, grant of such permission was well within the powers of the trial Court, but then the principles of natural justice, which are part of the fundamental right of a party, would require that such a party is put on adequate notice of the proposed move of its advocate. In the instant case, admittedly, no notice of the intention of learned counsel for the respondent to withdraw his appearance was given to the respondent. It is also an admitted fact that the trial Court on its own did not issue notice to the respondent regarding filing of no instructions pursis by the Advocate. If the respondent was not intimated about the intention of his Advocate to withdraw his appearance from the suit, the respondent would have to be said to be deprived of his right to either appear before the trial Court in person or through some other arrangement so that his defence was well taken care of. If the respondent did not know anything about such a move made by his advocate, naturally the respondent would take no blame for not making any alternate arrangement for defending his interest in the suit. But, the trial Court thought otherwise, though the violation of the basic and fundamental right of the respondent of being afforded a fair opportunity of defending himself, was as clear as sunshine.

11. There is a similar procedure prescribed under the provisions of Paragraph 660 of the Civil Manual. Sub-para (4) of Paragraph 660 of the Civil Manual being relevant is reproduced thus -

"(4) When an Advocate who has filed a Vakalatnama for a party wishes to withdraw his appearance, he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the note the letter or the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgment by the client. The Court, if it is satisfied that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the of the parties."
12. A bare reading of the above provisions of the Civil Manual would indicate that what they do is only giving effect to the fundamental right of a party regarding his being afforded a reasonable and adequate opportunity of being heard. This fundamental right flows from Articles 14 and 21 of the Constitution of India. Learned counsel for the appellant nevertheless submits that the provisions of paragraph 660 of the Civil Manual are only directory in nature and not mandatory. The argument, however, does not stand to the scrutiny of law in view of the fact that this provision is incorporated in sub-paragraph 4 of paragraph 660 of the Civil Manual only to protect fundamental right of being heard available to a party. Therefore, it cannot be said that this provision of Civil Manual is only directory in nature. It is rather mandatory, because it gives a concrete shape to the abstract fundamental right of hearing being granted to a party before any decision adverse to its interest is taken. The argument of learned counsel for the appellant is, therefore, rejected.

13. So, it is clear that in the instant case, there has been deprivation of reasonable opportunity of being heard to the respondent and, therefore, the whole trial of the suit was vitiated and as such, the judgment and decree passed by the trial Court will have to be said as no judgment and decree in the eye of law. It then follows that it was not possible for the 1st appellate court to proceed to decide the appeal on its own merit on the basis of whatever evidence was there on record.

14. The facts and circumstances discussed above would only show that this was a rare case in which exercise of remand power by the 1st appellate court became necessary, as is the view taken by the learned single Judge of this Court in the case of Beniram v. Ramchandra (supra) based upon the law settled by the Honble Apex Court in umpteen number of cases including the case of P. Purushottam Reddy v. M/s. Pratap Steels Ltd. reported in AIR 2002 SC 771 [LQ/SC/2002/126] . In the circumstances, I find that as there had been deprivation of adequate opportunity of hearing to the respondent; remand of the suit was necessary and the 1st appellate court rightly exercised such power vested in it by the provisions of Order 41, Rule 23-A of the Code of Civil Procedure. Both the points are answered accordingly.

15. In the result, I fine, there is no merit in this appeal. Appeal stands dismissed. Parties to bear their own costs.