2 Subhash vs 2 Ravindra
2010 Latest Caselaw 60 Bom

                             1




                                                            
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                    
                   BENCH AT AURANGABAD.

             APPEAL FROM ORDER NO.49 OF 2001.




                                   
     1 Gangagar s/o Rajaram Ingole,
     died thorugh his L.Rs.

     1(a) Rajaram GangaramIngole,
     age 70 years, occu. Agril.,




                        
     r/o Bamni.
             
     1(b) Dropadabai w/o Baburao Ingole,
     age 65 years, occu. Agril.,
     r/o Pusae tq. Pusad, Dist.
            
     Yeotmal.

     2 Subhash s/o Rajaram Ingole,
     aged 38 years, occu. Agril.,
     r/o Bamni, Tq. Hadgaon,
      

     Dist. Nanded.                      ...APPELLANTS.
                                 ( Orig. Plaintiffs ).
   



                          VERSUS

     1 Malkarjun s/o Gangadhar Hundekar,
     age 54 years, occu. Agril.





     2 Ravindra s/o Malikarjun Hundekar,
     age 35 years, occu. Agril.,

     3 Sanjay s/o Malikarjun Hundekar,
     age 32 years, occu. Agril.,





     all r/o Bamni, Tq. Hadgaon,
     District Nanded.                   ...RESPONDENTS.
                                   ( Ori. Defendants ).


                            ...
     Shri A.S. Deshmukh, Advocate for appellants.
     Shri B.B. Wagh, Advocate for R.Nos.1 to 3.
     (Absent).
                            ...




                                    ::: Downloaded on - 09/06/2013 16:33:32 :::
                                           2




                                                                           
                                               CORAM: S.S. SHINDE,J.




                                                   
                             RESERVED ON : 15th OCTOBER, 2010.

                           PRONOUNCED ON : 19th OCTOBER, 2010.




                                                  
     JUDGMENT:

1. The appellants herein / original plaintiffs

filed R.C.S. No. 31 OF 1985 against the

defendants / respondents herein for recovery of

the encroached portion of the land and also

claimed mesne profits. One Gangaram was the

father of plaintiff No.1 and grand father of

plaintiff No.2 and 3 and defendant No.1 is the

father of defendant Nos.2 and 3. Gangaram was

the original owner of Survey No.55 admeasuring 15

acres and 31 Gunthas. Gangaram was the owner of

Survey No.54. These lands were adjoining and

adjacent to Survey No.55. 27th January, 1976 the

plaintiffs got the land measured from the

D.I.L.R., and the said authority found that the

respondents have encroached upon the plaintiffs

land to the extent of 10 R. The plaintiffs

therefore, filed suit against the defendants. The

said suit was heard on merits and the trial Court

decreed the suit by observing that the

respondents have encroached upon the plaintiffs'

land. The respondents herein filed appeal being

Appeal No.206/1990. The learned appellate Judge

heard the appeal and was pleased to remand the

matter to the trial Court for retrial. After

retrial, the learned trial Court again held in

favour the plaintiffs and decreed the suit to the

extent of ig 16 R. The respondents again filed

R.C.A. No.142 of 1996 and the learned appellate

Judge, who heard the appeal, again remanded the

matter back to the trial Court for fresh trial.

Therefore, aggrieved by the said order, this

appeal from order has been filed by the

appellants.

2. The learned Counsel for the appellants

submitted that the lower appellate Court has

remanded the matter back even for the second

time. When the trial Court has adjudicated the

matter on 2nd occasion, it was not proper for the

lower appellate Court to remand the matter back

to the trial Court for fresh adjudication.

According to the learned Counsel for the

appellants, the lower appellate Court instead of

remanding the matter for second time ought to

have framed and recast the issue and should have

proceeded with hearing of the appeal on merits.

3. Though the respondents are served and

appearance is entered on their behalf, when the

matter was called out, none appeared for them. No

reply has been filed on behalf of the respondents

and in absence of any reply either oral or

written, the pleadings in this appeal from order

remained un-controverted on behalf of the

respondents.

4. After hearing the learned Counsel for the

appellants and perusal of the pleadings in the

appeal and annexures and also the reported

judgments of the Honourable Supreme Court, I am

of the opinion that this appeal from order

deserves to be allowed. The following

substantial question of law falls for

consideration of this Court in this appeal from

order:

Whether the lower appellate Court was

justified in remanding the matter for second

time to the trial Court when the appellate

Court is vested with the powers to frame and

adjudicate the issues by recording evidence

and after hearing the parties?

5. Perusal of the Order 41, Rule 23 of the Code

of Civil Procedure empowers the Court to remand

the matter back to the trial Court for fresh

adjudication. However, in the instant case, the

lower appellate Court has remanded the matter

back to the trial Court second time instead of

deciding the matter itself by framing necessary

points. The Supreme Court in case of Ashwinkumar

K. Patel v/s Upendra J. Patel and others (AIR

1999 SC 1125) held that the power of the

appellate Court under Order 41,Rule 23 should not

ordinarily be exercised merely because in its

view reasoning of lower court in some aspects was

wrong. When the material is available before the

appellate Court, the appellate Court itself

should decide the appeal, one way or the other.

The same view is reiterated by the Honourable

Supreme Court in subsequent pronouncements.

8. On perusal of the judgment and order passed

by the learned Ad hoc Addl. District Judge,

Nanded in C.R.A. No.142 of 1996, it appears that

the Court framed two points for its

consideration. The first point was framed as to

whether the trial court properly framed the

issues and ig on that finding is given that the

trial Court has not framed the issues and another

issue was framed as to whether the impugned

judgment and decree needs to be set aside and the

Court has recorded finding in affirmative. ON

going through the reasons recorded by the lower

appellate Court, it clearly appears that on

general discussion, the appellate Court had come

to the conclusion that the trial Court has not

framed the issues properly. The Court was alive

to the fact that in earlier round of litigation

the matter was remanded back to the trial Court

and the lower appellate Court was adjudicating

the matter second time. Therefore, if the lower

appellate Court felt that proper issues were not

framed by the trial Court, it was open for the

appellate Court to frame necessary points and

decide the mater there itself instead of asking

the parties again to go before the trial Court.

In fact, such exercise of remanding the matter

second time to the trial Court, that too when the

lower appellate Court itself was competent to

decide the points which fell for its

consideration, was unnecessary delaying the

matter and ig thereby causing injustice to the

parties. Therefore, in my opinion, the lower

appellate Court ought to have decided the matter

there itself by framing necessary issues and by

giving proper opportunity to the parties to put

forth their case. Therefore, second remand order

was absolutely unwarranted and undeserving in

view of the fact that the lower appellate Court

is vested with the powers to frame the issues and

adjudicate the issues finally.

7. Therefore, the impugned judgment and order

dated 17th July, 2001 passed in R.C.A. NO.142 of

1996 is quashed and set aside. The R.C.A. NO.142

of 1996 is restored to its original position. The

lower appellate Court is directed to frame

necessary points and after giving opportunities

to the parties concerned, to decide the said

appeal on merits, in accordance with law, within

a period of six months from the date of receipt

of order of this Court. The Appeal From Order is

allowed to above extent and disposed of. Civil

Application, if any stands disposed of. Original

record, if any, to be sent to the lower appellate

Court.

[ S.S. SHINDE, J ]

.....

Kadam.