On 7th October 2022, the Bombay High Court, Aurangabad Bench, in a single judge bench comprising of Justice Sandipkumar Chandrabhan More observed that it is obligatory on the part of Appellate Court to reverse the finding of Trial Court while making Order of Remand and it can be made only if the Trial Court skips finding on certain issue or decides the suit only on preliminary issue by leaving open the vital issue. (Pandurang Sitaram Chaudhari (Borse) And Another V. Sunil Pralhad Chaudhari And Others)
Facts of the Case:
The original defendant no.1 had filed Misc. Civil Application and sought permission from the concerned Court to sue as an indigent person. It was allowed and suit was registered as Special Civil Suit. He claimed relief of partition and separate possession of suit property along with a flour mill and two electric meters. According to him the suit property was joint family property and he claimed one-fifth share in the suit property as he was driven out from the house by Sitatam, his father. During the pendency of the suit, Sitaram died, but defendant Nos.3 and 4, brothers of Pralhad admitted the suit claim. Defendant no.2, mother of Pralhad resisted the suit by contending that the suit property was self-acquired property of her deceased husband Sitaram but the court held that it was a joint family property and determined one-fourth share of plaintiff. The same was challenged by defendant no.2 by filing First Appeal, but because of enhanced pecuniary jurisdiction, the appeal was transferred to the lower Court as a regular civil appeal. During its pendency, Sunil and Jitendra, filed separate suit against their father- Pralhad, paternal uncles and grandmother for declaration that they be declared as owner of the suit property by virtue of Will purportedly executed by their grandfather Sitaram. But it was dismissed by stating that property was joint family property, and therefore, Sitaram was not having any right to bequeath the same. Thus, Sunil, Jitendra and Shantabai had filed the aforesaid Regular Civil Appeals. The lower court had passed a common order in those appeals and thereby rendered the suit to court of Civil Judge (Senior Division) for deciding the same by consolidating them. Hence, these appeals.
Contentions of the Appellants:
The counsel for appellants submitted that “the vital issue in both the suits in respect of the nature of suit property, whether joint family property or self-acquired property, has been decided on merit in both the suits. Full opportunity of leading evidence was given to Sunil and Jitendra and the concerned trial Court had also independently assessed the nature of the suit property being joint family property on the basis of independent evidence. He pointed out that when the appellate Court i.e., the lower Court was seized of both the appeals arising out of the suits which were decided on merit, it could have disposed of the appeals on merit instead of remanding the same back to the concerned trial Court. The concerned Orders and Rules of the CPC as to how the remand order passed by the learned lower Court was erroneous.” The counsel placed reliance upon the cases, Balkrishna Dattatraya Butte vs Dattatraya Shankar Mohite and others, P. Purushottam Reddy and another vs M/s Pratap Steels Ltd., Ashwinkumar K. Patel vs. Upendra J. Patel & others, and Vishnu Dashrath Chavan vs Pundalik Dashrath Chavan.
Contentions of the Respondents:
The counsel for the respondents submitted that “the lower Court has rightly remanded both the civil suits for deciding afresh by consolidating the same and by common judgment. Sunil and Jitendra were not party to the Special Civil Suit filed by their father and since a common question was involved in respect of the nature of suit property in both the suits, the trial Courts ought to have consolidated both the suits together for disposal by common judgment.”
Observations and Order of the Court:
The Hon’ble court observed that “the order of remand can be made only if the trial Court skips finding on certain issue or decides the suit only on preliminary issue by leaving open the vital issue in respect of the real controversy between the parties. it has been made clear that no remand can be made if the trial Court has decided the suit by considering the entire evidence on record and when the appellate Court, in view of the said material, is able to re-assess the evidence to ascertain whether the findings given by the trial Court are sustainable or not. It is also obligatory on the part of appellate Court to reverse the finding of trial Court while making order of remand. In the instant case, t the concerned trial Courts have decided both the suits on merit and after giving full opportunity to the rival parties to lead the evidence. Further, it is not the case of anybody that they were denied opportunity of adducing evidence. As such and in view of the observation by this Court as well as by the Hon’ble Apex Court as mentioned earlier, I found that the Principal District Judge, Jalgaon, especially when seized of both the appeals, could have decided the same on merits by reassessing the evidence on record. The remand order passed by the learned lower Court appears fully erroneous since it would definitely delay the matter for indefinite period.”
The appeals were allowed and the impugned common judgment and order passed by the learned Principal District Judge and Regular Civil Appeal were quashed and set aside.
Case: Pandurang Sitaram Chaudhari (Borse) And Another V. Sunil Pralhad Chaudhari And Others
Citation: Appeal From Order No. 94 Of 2015, Civil Application No. 14264 Of 2015, Appeal From Order No. 95 Of 2015 And Civil Application No. 14265 Of 2015
Bench: Justice Sandipkumar Chandrabhan More
Date: 7th October 2022
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