Partly allowed

Dwarika Prasad Agrawal v. Satyanarayan

Chhattisgarh HC3 Aug 2012MA/1/2011

Case brief

AI extract

What is this about?

This miscellaneous appeal challenges an order of the First Appellate Court which remanded a land suit case and directed the trial court to decide the suit afresh after admitting additional documents under Order 41 Rule 27 CPC.

What did the court decide?

Ordered that the trial court records evidence as directed by the First Appellate Court and transmits the record without deciding the suit afresh.

Dwarika Prasad Agrawal Vs Satyanarayan — Chhattisgarh HC (2012) — LawSathi Research

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Misc. Appeal No. 1 OF 2011

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Vs.

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Post for pronouncement of order on

.2 ,'08/2012.

N.K. Agarwal Judge

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COURT OF CHHATTSSGARH AT BILASPUR

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Mlsc. Appeal No. 1 of 2011

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APPELLAN-

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klT. PLAiNTIFF

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Dwarika Prasad Agrawal, aged about (60) years, son of Late Shrilal Agrawal, Resident of Bharat Mata Chowk, Rajnandgaon (CG)

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yatyanaraysn, agi i about 70 (68) years, son of Late Shri Chauthmal Agrawal, Resident iharat Mati c howk, Rajnandgaon (CG)

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't-

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MEMOOF_APPEAL_ :R 43 RUL.E Kul OF THI CiViL PROCDURE CODE

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S.B: Hon'bie Mr.justlce N.K-AaarwaI

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'resent : Shri P.K.C. Tiwari, Senior Advocate wll Thakur, Advocate for the appellant. Shri Sanjay K. for the respondent.

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Thtei i ilO is defendant's miscelianeous appeal filed under Order i(no(^» 43 Rule 1(u) of ie Code of Civi 3Ui i. ^/rv/ against the remas order dated 24.11 ,2010 passed by Addltlonal nic.frii'^tfrict Judge,-! Rajandgaon in Civi! Appeai No. 3-A;'201

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ief facts of the case are : Respondent/plaintiff instituted a .suit for declaration and permanent injunction.

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The trial Court dismisssd the sutt vide judgment and decree dated 14.07.2008.

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The respondenVplaintlff filed an.appeal. Appiication under f'rrrS.1^/iU' sr 41 Ryie 27 of CPC for admission of documents as additional evidence was atso filed. .^

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'Irst Ths Appeliate 'f ^ .!'uui l silowed the respondent's app!ication filed under Order 41 Rule 27 of CPC remanded back the matter to the trial Court after settlng asids the judgment and decree passed by it with a direction to decide the suit afresh ifter giving opportunity to both the parties to lead evidence in support and rebuttai of the documents allowed by it in the appea!. Hence, this appeai.

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1.-

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Shri P.K.C. Tiwari, leafned Senior Counsel with Shri Thakur,i s counss! tli )eliant assaiied the jui Uiuei ,y^4j~'.y j^y» i^i s '^tss/t ivvu ^ts^tt ^uui ty*i">' its;.

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Learned tria! Court should have, in the facts and (1). circumstances of the case, rejected the appiication fr?5Ri' rt has faiied to substantiate that notwithstanding the exercise of due dsi'igenc

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(ii)

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tn view of provision contained in Rule 28 of Order 41 of "1 iai ing asiae

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ud.qment and decree of the trial Court and remand fnr

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7.. .. Per contra, Shri Sanjay K. Agrawa! and Shri. Sourabt <?!C^h'sr icaiiii thl judgment/order Impugned and submitted in the facts and circumstances of the case, the judgment/order impugned does not caii tor any-interterence.torfe

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1 have heard learned counsei appearing for the parties and perused the record of the First Appeliate Court including judgment/order Impugned.

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Indlsputably, the documents filed by the respondent'plaintlff are pubiic documents. The learned court below, after considerins ths grounds taken by the respondent/piajntiff in the application fitee i! IUC?1 ^'iyiS! f"-JA^. 1-\UE'SRisia ^.^QT r^fui ^r^,^O^* -s^'tsrssii.'ss "rsmEnrt»>/vii3)E'y fni.v css r'^ri^i^vssu'! despite the exercise of due diiigence, the above documents could not be traced out ancTTiied by the respondent before decision of the suit and are aiso necessary for just decislon of the case, allowed tha f.1 !<S? sspondent to fi!e the documents as additional evidence

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The appe!!ate Court has the power^to aliow additiona! evidence not oniy if it requires such evidence "to enabie it to pronoun.ee judgment" but a!so for "any other substantia! cause."

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(Please see North Eastern Rait Gorakhpur vs. Bhagwan Das (DEAD) by LRs. reported in (2008) 8 SCC 511)

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Therefore, the court below, in its discretion, after considerine the relevancy of the documents, has rightly allowed She respondent to fiie the documents in question as additional evidence in the appeal, which In the considered opinion of this court needs no interference in the instant mjscellaneous appea!

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Nevertheless, the court below has certainSy fallen in error In remanding the case for reconsideration after setting aside the judgment and decree.

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As per Rule 28 of Order 41 of CPC : Wherever additiona! evldence Isailowedto be prtfduced, the Appe'late Court may either

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iake such evidence, or direct ttie Court from whose decree the appeai is preferred, or any other subordjnate Court, to take suc!evidence and to send it when taken to the Appellate Court.

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It nowhere prescribes for wholesome remand as in case of remand under Order 41 Rule 23 and 23-A after setting aside the judgment and decree.

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1R i 'w' The Supreme Court considerlng the provision Order 41, Rule 25 of CPC in case of Gogula Gurumurthy and others Vs. Kurimeti Ayyappa reported in has held in paragraph 5 as under :-

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" When a finding Is called for on the basis of certain issues frai either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the

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The same view has been reiterated by the Supreme Court in case of Bachahan Devi and another vs. Nagar Nigam, Gorakhpur and another^.

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Considering the provision of Order 41 Rute 28 of CPC, Supreme Court in case of H.V. Vedavyasachar v. Shivashankara & inr. has held : High Court could rsot have directed the trial Court to

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dispose of the suit after taking evidence. Such an order of reman< couid be only in terms of^3rder 41, Rule 23, Order 41 Rule 23 A or Order 41, Rule 25 of the Code. None of the said provisions have any application in the instant case.

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' (1975) 4SCC 458 .^2 (2008) 12 SCC 372 32010AIRSCW468

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Applys of ratio of !aw laid down by the Supreme Court cases, it is crystal clear that the Court belov-/ has legalty erred in directing the tria! Court to decide the suit afresh after taking additiona! evidence and is not sustainable in law. S, th&rerefore, in modification of the order passed by the court below dSI'i

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(i) The learned tria! Court upon recording the evidence as directed by the First Appeilate Court shall transmit the records to the First Appellate Court with a copy of its report annexed thereto.

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(ii) Such an exercise by the Searned trial Court must be completed within a period of three months from the date of communication of this order.

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(iii) The First Appeilate Court must dispose of the first appeal on receipt of the sald order as also the evidence as adduced as expeditlously as possible.

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•19. In the facts and circumstances of this csse, there shal! be no order as to costs.

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•20. The appea! is disposed of, accordingly.

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Sd/N.K. Agarwal Judge

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Dwarika Prasad Agrawal v. Satyanarayan

Case brief

What is this about?

What did the court decide?

Dwarika Prasad Agrawal v. Satyanarayan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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