Ramwati Devi And Another vs Prem Chand And Others
2022 Latest Caselaw 1355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 724 of 1998
 

 
Appellant :- Ramwati Devi And Another
 
Respondent :- Prem Chand And Others
 
Counsel for Appellant :- ,Balwant Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. By way of this appeal, the appellants have challenged the judgment and order dated 15.4.1998 passed by the District Judge, Budaun in Civil Appeal No. 50 of 1997 (Prem Chand and 5 others v. Smt. Danwati and others).

2. Heard learned counsel for the appellant. Notices are deemed to be served. None has appeared for the respondents. Hence, this appeal, after a period of 24 years, is taken up for final disposal and decided ex parte.

3. On a very short point, this appeal requires to be disposed of. The Apex Court has held that the Appellate Court normally should decide the appeal on merits. History as to the litigation, dates back to the year 1991. Suit was preferred by the appellant No.1 wherein she had succeeded. In fact, the learned District Judge should not have set aside the order and relegated the parties to the Trial Court as all the issues were already decided. The appellate Court was under an obligation to decide the matter on merit. This shortcut of relegating the parties to the Trial Court fororiginal suit to be decided again, is bad in eye of law.

4. The appellate Court is under an obligation to decide itself the lis between the parties unless it come to a definite conclusion that the matter requires leading of evidence once again by the Court below. The remand of matter which has been decided by and between the parties has to be in rarest of the rare cases. The appellate Court is under obligation to dispose of the case finally vide Order 41 Rule 24 of the Code of Civil Procedure, 1908. Record is sufficient to enable the appellate Court to pronounce judgement and, therefore, it will have to decide the matter finally. This is the mandate of the Apex Court spelled out as early as 1969 in the case of Sunder Singh v. Narain Singh, 1969 SCD 900, reiterated in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, (1988) 1 SCC 383. The Appellate Court no doubt has power to remand the matter under Order 41 Rule 23 and 23 A of C.P.C. but it follows certain conditions which are not satisfied in the case in hand.

5. In view of the above, this appeal is partly allowed. The first appellate Court shall decide the appeal on merits. However, as there was stay, the suit may not have been proceeded. This Court is not aware about the present status of the remanded matter. Hence, the first appellate Court shall first ascertain these facts and then decide the matter after hearing all the parties.

Order Date :- 25.4.2022

DKS