This court disposed of a writ petition challenging an appellate order that framed issues after remittal. The court declined to enter merits, granting liberty to the petitioner to raise objections before the Appellate Court.
Petition disposed of with liberty to raise pleas before the Appellate Court.
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Neutral Citation No. - 2024:AHC-LKO:50066
Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 3389 of 2024
Petitioner :- Ram Gopal And 3 Others Respondent :- Lallu And 2 Others Counsel for Petitioner :- Anurag Shukla,Santosh Kumar Tripathi
Hon'ble Manish Kumar,J.
Heard learned Counsel for the petitioners and Shri Ankit Pandey, Advocate, who has filed his vakalatnama on behalf of respondent nos. 1 to 3, which is taken on record.
Present petition has been preferred for setting aside the order dated 28.05.2024 passed by the Additional District Judge/Special Judge POCSO Act, Bahraich in First Appeal No. 7 of 1992 (Barsati Vs. Pandit Ram Gopal and others) with all consequential effects.
The learned Counsel for the petitioners has submitted that a suit for permanent injunction bearing Regular Suit No. 85 of 1980 was preferred by the predecessors of the respondents in the present petition against the petitioners which was dismissed by order dated 22.10.1991. Against which the first appeal under Section 96 C.P.C. was preferred by the predecessors of the respondent which was allowed by judgment and order dated 21.09.1995. Against which, a Second Appeal bearing No. 317 of 1995 was preferred by the petitioners which was allowed by this Court vide its judgment and order dated 05.05.2022 after taking into consideration anomalies as pointed out and matter was remanded to the Appellate Court, which is pending in which the issues have been framed by impugned order dated 28.05.2024, which is subject matter of the present petition.
It is further submitted that in the Second Appeal No. 317 of 1995, this Court vide its judgment and order dated 05.05.2022
had remanded the matter on the limited issue/point with a finding that Appellate Court has wrongly decreed the suit permitting the defendant to occupy 65 feet of land in place of 80 feet as per Advocate Commissioner's Report-paper no. 33-C and thereafter also directing him for handing the land in dispute to the plaintiff. Meaning thereby, the judgment and order dated 21.09.1995 was set aside only to the limited point and the Appellate Court framing the issues beyond the question on which it was remanded is without jurisdiction and against the directions of this Court issued in the Second Appeal.
In support of his submissions, learned Counsel for the petitioner has relied upon the Order 41 Rule 23 C.P.C. which provides remanding of case by Appellate Court.
Learned Counsel for the petitioners has further placed reliance upon the judgment of Hon'ble Apex Court in the case of Shivshankara and anothers Vs. H.P. Vedavyasa Char reported in (2023) LiveLaw (SC) 261.
On the other hand, Shri Ankit Pandey learned counsel for the respondents has submitted that by the impugned order in the present petition only points of determination have been framed by the Appellate Court and the same has not been decided yet and the petitioner have a remedy to raise all the objections before the learned Appellate Court, thus the present petition under Article 227 of the Constitution of India is not maintainable.
At this stage, learned Counsel for the petitioners has submitted that the present writ petition may be disposed of with a liberty to the petitioners to raise all these pleas before the learned Appellate Court, which may consider the same in the light of the provisions of the C.P.C. and the law laid down by Hon'ble Apex Court in the case of Shivshankara (supra) relied by him before this Court.
On the request of learned counsel for the petitioners and without entering into the merit of the case, the present petition is disposed of and it is always open for the petitioners to raise the pleas before the learned Appellate Court and it is expected that the learned Appellate Court will consider and decide the matter, in accordance with law.
Order Date :- 24.7.2024 Ashish
Digitally signed by :- ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench
1 issue framed by the court
Whether a writ petition under Article 227 is maintainable against an appellate court order merely framing issues without reaching a decision.
Colour shows how this judgement treated each authority
Shivshankara and anothers Vs. H.P. Vedavyasa CharReferred¶12
(2023) LiveLaw (SC) 261
2 provisions across 2 enactments
Ram Gopal And 3 Others
Lallu And 2 Others
Manish Kumar
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
