The High Court allowed the appeal, holding that remanding a civil matter to the trial court is impermissible when sufficient evidence exists for the appellate court to dispose of the appeal on merits under Order 41 Rule 24 CPC.
Judgment dated 31.10.2014 set aside; appellate court directed to decide appeal expeditiously.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 3653/2014
----Appellants/Defendants
Versus
1/1. Keshri Chand S/o late Shri Murari Lal
1/2. Mukesh Kumar S/o late Shri Murari Lal (since deceased)
R/o Halwai Paysa, Ward No. 6, Kumher, Distt. Bharatpur
1/7. Snehlata D/o Late Shri Murari Lal, R/o Behind Old Laxman Mandir, Bharatpur
----Plaintiffs/Respondents
25.7.2007 vide order dated 11.11.2014
Defendants/Proforma Respondents
For Appellant(s) : Mr. Jai Prakash Gupta, Advocate For Respondent(s) : Mr. Bipin Gupta, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
13/12/2021
(2 of 4)
[CMA-3653/2014]
This Civil Misc. Appeal has been filed by the appellantsdefendants (for short, 'the defendants') against the judgment dated 31.10.2014 passed by Addl. District Judge No.2, Bharatpur (for short, 'the appellate court') in Civil Regular Appeal No. 102/2004, whereby the appellate court allowed the appeal filed by the respondents-plaintiffs (for short 'the plaintiffs'), set-aside the judgment and decree dated 31.3.2004 passed by the trial court and remanded the matter to the trial court with a direction to try the issue no.2 afresh on the basis of evidence available on record and decide the suit afresh within a month.
Facts of the case are that the original plaintiff Murari Lal filed a suit for permanent injunction against the defendants mentioning therein that he is in the ownership and possession of a residential plot situated at Halwai Paysa, Kumher, Tehsil Kumher. In the eastern side of the said property, there is a public way. The said public way was being used for to and fro purposes. The suit property had become dilapidated and the debris was lying on the way. However, on 21.12.1999, the defendants with malafide intention and fraudulently got sanctioned the land of the aforesaid way in their name for the purpose of constructing a house from Municipal Council, Kumher on the basis of forged agreement to sale, for which neither the Gram Panchayat nor the Municipal Council had any right to sell or to give permission to raise construction.
The defendants put in appearance and filed written statement. The defendants no. 1 to 3 submitted that the plaintiff did not reside in the aforesaid property and reside in another house. In the eastern side of the said property, no public way was existed. The land in question was not the public way, but it was
(3 of 4)
[CMA-3653/2014]
purchased by the father of the defendants no. 1 and 3 from the defendant no.4 through agreement to sale dated 23.10.1965 and obtained permission on 18.11.1965 to raise construction, but construction could not be raised thereon. Subsequently on 21.12.1999, the defendants no. 1 to 3 again obtained the permission for construction from defendant no.4. The plaintiff did not come before the court with clean hands and concealed the material facts.
The defendant no.4 also filed written statement mentioning therein that in the municipality record, the disputed land was not entered as a public way. It was also submitted that no relief was sought in the plaint against the defendant no.4, therefore, the suit be dismissed.
On the basis of pleadings of the parties, necessary issues were framed.
After hearing the parties, the trial court vide its judgment dated 31.3.2004 dismissed the plaintiff's suit. On an appeal filed by the plaintiff, the Appellate Court vide its judgment dated 31.10.2014 allowed the appeal and remanded the matter to the trial court, as mentioned above. Hence, this Civil Misc. Appeal has been filed.
Learned counsel for the defendants submits that simplicitor suit for injunction was filed and issue no.2 was subsumed in issue no.1, which was decided in detail by the trial court, but the appellate court committed material illegality by remanding the matter to the trial court to try the issue no.2 afresh, whereas there was sufficient evidence and material available with the appellate court to decide the same and appeal on merits.
(4 of 4)
[CMA-3653/2014]
On the other hand, learned counsel for the respondents fairly admits that sufficient evidence was available on record, therefore, there was no necessity to remand the matter to the trial court.
Heard. Considered.
Taking into consideration the facts and circumstances of the case and in view of the fact that when the sufficient evidence and material was available with the appellate court, there was no necessity to remand the matter to the trial court and in view of the provisions of Order 41 Rule 24 CPC, the remand order is not legally sustainable.
For the aforesaid reasons, the appeal is allowed and the judgment dated 31.10.2014 passed by the appellate court is quashed and set-aside.
The appellate court is directed to decide the appeal expeditiously.
(PRAKASH GUPTA),J
DK/17
2 issues framed by the court
Whether the appellate court erred in remanding the matter to the trial court when sufficient evidence was available on record to decide the appeal on merits.
Whether the remand order is legally sustainable in light of the existence of sufficient material for decision by the appellate court.
1 provisions across 1 enactments
Girraj Prasad
Rajesh Kumar
Murari Lal's legal representatives
Prakash Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
