Dismissed

Suresh Kalwani v. Mona Yadav

Chhattisgarh HC24 Nov 2023WP227/379/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a trial court's rejection of an application under Order 22 Rule 10(2) CPC. The court held that factual questions regarding non-compliance with appellate directions require a full trial and alternate remedies exist, thus refusing interference under Article 227.

What did the court decide?

Petitioner granted liberty to raise objections before appropriate forum; interim relief vacated.

Suresh Kalwani Vs Mona Yadav — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 379 of 2022

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1.Suresh Kalwani S/o Dr. D.R. Kalwani Aged About 58 Years R/o Priyadarshani Nagar, Bilaspur, Tehsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh

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---- Petitioner

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Versus

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1.Mona Yadav W/o Ramsingh Yadav Aged About 50 Years R/o Basera Colony, Bharti Nagar, Bilaspur, Tehsil And District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh

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2.State Of Chhattisgarh Through The District Magistrate, Bilaspur, District Bilaspur Chhattisgarh.

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---- Respondents

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--------------------------------------------------------------------------------------------------------For petitioner : Mr. Shobhit Koshta, Advocate. For Respondent No. 1 : Mr. Anchal Matre, Advocate For State : Ms. Ruchi Nagar, Dy. Government Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas. Order on Board

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24.11.2023

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The petitioner has filed this petition assailing the order dated 13.05.2022 (Annexure P/8) passed by learned 3^rd Civil Judge, Class –I, Bilaspur by which the application filed by the petitioner under order 26 Rule 10(2) of the CPC has been rejected on the count that after examination of evidence of commissioners’ witness the objection is not sustainable.

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The brief facts from the record would reflect that the plaintiff’s suit was earlier dismissed by the learned Civil Judge on 31.10.2015 against which he had preferred first appeal before the learned District Judge, Bilaspur which was registered as First Appeal No. 128A/2015. Learned District Judge on 22.8.2016 allowed the appeal and set aside the judgment and decree passed by the learned trial Court and remanded back the matter with a direction to hear the parties on commission’s report.

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Thereafter the learned trial Court vide judgment and decree dated 07.12.2018 has dismissed the suit, against which the plaintiff has

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preferred an appeal which was registered as Civil Appeal No. 7A/2019. The learned first appellate court allowed the first appeal and remanded the matter to the learned trial Court directing to issue writ of commission afresh for physical inspection and demarcation of the suit property. Thereafter, obtain clear report with regard to possession. The first appellate Court has directed the learned trial Court to give an opportunity to plaintiff and defendant to lead evidence on commission’s report and thereafter pass the judgment.

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The learned counsel for the petitioner would submit that the learned trial Court has rejected the application filed by the petitioner under Order 22 Rule 10(2) of the CPC without considering that the demarcation has not been carried out as per the direction of the first appellate Court, as such the order dated 13.05.2022 deserves to be quashed by this Court. Learned counsel for the petitioner would further submit that learned trial Court has not complied with the order of the learned Appellate Court in its true spirit, therefore, it has committed illegality and irregularity which warrants interference by this Court while exercising power conferred under Article 227 of the Constitution of India which is vehemently opposed by the learned counsel for the objector.

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Learned counsel for the objector would submit that learned court has considered the application filed under Order 22 Rule 10(2) of the CPC thereafter, it has rejected the application. Further, the petitioner has remedy of raising his objection before the trial Court, even, he may file appeal before the first appellate Court, therefore, would pray for dismissal of this writ petition.

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I have heard learned counsel for the parties and perused the record.

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The submission of the learned counsel for the petitioner that the learned trial Court has not complied with the order passed by the learned appellate Court or has transgressed its jurisdiction, cannot be decided by this Court under Article 227 of the Constitution of India as the entire facts, evidence have to be considered for deciding the said submission. This can be very well agitated before the trial Court as the trial has not been

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concluded even before the first Appellate Court or before this Court by filing second appeal. As such, alternate remedy is available to the petitioner to raise all his permissible grievances before forum available to him, therefore, I am not inclined to entertain this writ petition. Accordingly, the writ petition is disposed of granting liberty to the petitioner all his objections before appropriate forum as stated above.

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It is made clear that this Court has not expressed anything on merits of the case. The trial Court will decide the trial without being influenced by any of the observation made by this Court and decide the trial on merits. The interim relief granted earlier stands vacated.

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Sd/( Narendra Kumar Vyas) JUDGE

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Deshmukh

Suresh Kalwani v. Mona Yadav

Case brief

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Suresh Kalwani v. Mona Yadav

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