Allowed

Surendra Prasad Singh And Ors. v. Amarendra Kumar Singh And Ors.

Jharkhand HC3 Nov 2017MA/247/2016

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a miscellaneous appeal, holding that the Appellate Court erred in law by remanding a title suit to the Trial Court when retrial was unnecessary on existing evidence. The High Court directed the Appellate Court to decide the issues at its own level within two months.

What did the court decide?

Impugned Judgment and Decree dated 4.4.2016 in Civil Appeal No.31 of 2015 set aside; Appellate Court directed to decide the appeal at its own level within two months.

Surendra Prasad Singh And Ors. Vs Amarendra Kumar Singh… — Property and Title | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M.A. No.247 of 2016

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Surendra Prasad Singh

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Sanjay Kumar Singh

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Madhvendra Singh

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Sadhvendra Singh

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Sunil Singh ...… Appellants/ Defendants

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Versus

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Amarendra Kumar Singh

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Ramkali Devi

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Jai Narayan Singh ...… Respondents/ Plaintiffs

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CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA

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For the Appellants : Mr. Bibhash Sinha, Advocate. For the State : Mr. Atanu Banerjee, Advocate. ------

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12/03.11.2017

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Heard learned counsel for the appellants and the learned counsel for the

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respondents.

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The appellants are aggrieved by the Judgment and Decree dated 4.4.2016, passed by the Appellate Court below, namely, the learned Principal District Judge, Bokaro, in Civil Appeal No.31 of 2015, whereby, the Appellate Court has set aside the Judgment and Decree dated 30.7.2015, passed by the Trial Court, in Title Suit No. 25 of 1997, and has remanded the matter back to the Trial Court below to decide the issue Nos. I, IV, V(A), VI, VII and IX afresh, in accordance with law.

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It may be stated that the plaintiffs filed the title suit for declaration of their right, title, interest and confirmation of possession over the suit property described in schedule 'A' into the plaint. Alternatively, it was prayed that in case, the plaintiffs were found not in possession, the decree of recovery of possession be also passed and further prayer for permanent injunction was made for restraining the defendants from interfering into the peaceful possession of the plaintiffs over the suit property.

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Both the parties contested the suit. On the basis of the pleadings of the parties, as many as nine issues were framed by the Trial Court below. Both the parties adduced evidences, both oral and documentary, and on the appraisal of the evidence, the suit was dismissed on contest by the Trial Court, being the learned Civil Judge (Sr. Div.) III, Bokaro, by the Judgment and Decree dated 30.7.2015, passed in Title Suit No. 25 of 1997.

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The plaintiffs challenged the said Judgment and Decree passed by the Trial Court, in the Appellate Court below, and the Appellate Court below has given a finding that the issue Nos. I, IV, V(A), VI, VII and IX were wrongly decided by the Trial Court and the interest of justice demanded that these issues be considered afresh by the Trial Court.

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Admittedly, as agreed by the learned counsels for both sides, no fresh evidence was directed to be adduced and the issues were to be decided on the basis of the evidence and materials already on record.

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Learned counsel for the appellants has submitted that the impugned Judgment and Decree passed by the Appellate Court below remanding the suit to the Trial Court for deciding the aforesaid issues afresh, are absolutely illegal and cannot be sustained in the eyes of law, in view of the Order XLI Rule 23-A of the Civil Procedure Code, which reads as follows :-

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" Rule 23-A. Remand in other cases — Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

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It is submitted by the learned counsel for the appellants that since the

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retrial was not at all necessary in the case, and the matter had to be decided on the basis of the evidence and materials already on record, the Appellate Court below ought to have decided the issues itself, if necessary, by setting aside the findings of the Trial Court below and there was no necessity for remanding the case to the Trial Court for fresh consideration of the issues on the same evidence and materials, already on record. Learned counsel accordingly, submitted that the impugned Judgment passed by the Appellate Court below cannot be sustained in the eyes of law.

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Learned counsel for the respondents, on the other hand, though has opposed the prayer, but it is an admitted position by the learned counsel that neither any fresh issue was required to be framed, nor fresh evidence was required to be taken, and the issues were to be decided only on the basis of the evidence and

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materials already on record. Learned counsel however, submitted that the Appellate Court below was within its right to remand the matter to the Trial Court for fresh adjudication of the issues.

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Having heard the learned counsels for both sides and upon going through the impugned Judgment, I find that in the facts of this case, there was no need for remanding the matter to the Trial Court below at all. All the materials were already on record and in case, if in the opinion of the Appellate Court below, the issues were wrongly decided by the Trial Court, it was well within the competence of the Appellate Court below to set aside the findings of the Trial Court on those issues and to have decided the issues in accordance with law. There was absolutely no occasion to remand the case back to the Trial Court for fresh decision on the issues. Order XLI Rule 23-A of the Civil Procedure Code, clearly envisages the situation of remand of the case to the Trial Court only in the cases where the retrial is considered necessary by the Appellate Court. In the present case, the retrial was not considered necessary, as the issues had to be decided on the evidence and materials, already on record. In my considered view, the impugned Judgment and decree passed by the Appellate Court below cannot be sustained in the eyes of law.

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For the Foregoing reasons, the impugned Judgment and Decree dated 4.4.2016, passed by the learned Principal District Judge, Bokaro, in Civil Appeal No.31 of 2015, are hereby, set aside. The Appellate Court below is directed to decide the appeal at its own level in accordance with law, as expeditiously as possible, and in any case, within the period two months from the date of receipt of this order.

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This Miscellaneous Appeal is accordingly, allowed. In the facts of this case, there shall however, be no order as to costs.

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(H. C. Mishra, J.)

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BS/

Surendra Prasad Singh And Ors. v. Amarendra Kumar Singh And Ors.

Case brief

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Surendra Prasad Singh And Ors. v. Amarendra Kumar Singh And Ors.

Case brief

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