Arjun Lal Pasi vs Smt. Sandhya Pasi
2021 Latest Caselaw 4833 MP

                            Object 2
                                   1




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                                                                M.A.No.1050/2021

     THE HIGH COURT OF MADHYA PRADESH, JABALPUR


Misc. Appeal No.            1050 of 2021
Parties Name                Arjun Lal Pasi and others vs. Smt.
                            Sandhya Pasi and others


Bench Constituted           Hon'ble Shri                   Justice   Rajendra
                            Kumar (Verma)
Whether approved for                   Yes/No
reporting
Name of counsel for         For Appellants:
parties
                            Shri                 Jaswant   Kumar     Barman,
                            Advocate.


Law laid down
Significant paragraphs



Jabalpur, Dated 31.08.2021.
          The appellants have filed the present appeal,

challenging the judgment dated 05.03.2021 passed by District

Judge, Jabalpur in R.C.A.No.13/2019, thereby the First Appellate

Court has remanded the matter to the trial Court for deciding

an additional issue.

2.        Facts

necessary for disposal of the present appeal in

short are that the respondent N.2 had filed a civil suit for

partition in respect of property situated at Mouja Ranipur, N.B.

No.401, P.H.No.88/02, Area 4310 sq. ft. khasra No.82/2, District

Jabalpur. The respondent No.1 had filed written statement. On

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the basis of pleadings and evidence on record, the learned trial

Court decreed the suit in favour of respondent No.2. The

respondent No.1 had filed an appeal against the judgment and

decree dated 03.12.2018 along with an application under

Order 41 Rule 27 of C.P.C. and learned lower appellate Court

vide impugned judgment dismissed the application and

remanded the case to the lower Court for deciding an

additional issue.

3. Learned counsel for the appellants submits that learned

lower appellate Court has erred in framing additional issue and

remanding the case when the evidence is already on record as

has been discussed and findings have been given by learned

lower Court. Learned lower appellate Court has also committed

error that when an application under Order 41 Rule 27 of C.P.C.

is dismissed, then judgment of remand is not permissible

under law. Lacuna if any, cannot be permitted to be filed in. He

has relied on the decision rendered in the case of State of

U.P. vs. Manbodhan Lal Shrivastava, AIR 1957 SC 912, in

which, the Hon'ble Apex Court has held that additional

evidence in appellate Court should not be permitted in order to

enable one of the parties to remove certain lacuna in

presenting its case at the proper stage and to fill any gap.

4. I have heard learned counsel for the appellants at length

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and perused the record.

5. From perusal of the record, it reveals that the respondent

N.2 had filed a civil suit for partition and on the basis of

pleadings and evidence on record, the learned trial Court

decreed the suit in favour of respondent No.2. Being aggrieved

thereof, the respondent No.1 had filed an appeal against the

judgment and decree along with an application under Order 41

Rule 27 of C.P.C. and learned lower appellate Court vide

impugned judgment dismissed the application and remanded

the case to the lower Court for deciding an additional issue.

6. Learned lower appellate Court has rejected the

application under Order 41 Rule 27 read with Section 151 of

C.P.C. holding that original will is already there in the record of

the trial Court. Learned lower appellate Court has also dealt

with the case cited by learned counsel for the appellants in the

case of State of U.P. (supra) wherein the Hon'ble Supreme

Court has further held that position is different where the Court

itself requires certain evidence to be adduced in order to

enable it to do justice between the parties. Lower Court further

found that illiterate defendant No.2/respondent No.1 who

remained ill advised regarding production of attesting witness

of will and exhibition of such document in conformity with law,

the Court cannot remain mute spectator and to do justice

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between the parties, additional evidence is required to be

adduced, so it is proper that the case should be remanded to

the trial Court to allow the defendant No.2/respondent No.1 to

lead evidence in support of the registered will. Learned lower

appellate Court has also observed that since the plaintiff will

have an opportunity to cross-examine the witnesses, therefore,

no prejudice can be caused to him and other defendants.

Thereafter learned lower appellate Court framed additional

issue pursuant to provisions under Order 41 Rule 25 of C.P.C. It

is clear that registered will was produced by the defendant

No.2, which is on record, there are also pleadings and oral

averments regarding it, but due to mistake of the counsel, this

registered will could not be exhibited and none of the attesting

witness could be produced on behalf of the defendant No.2.

7. In view of above, in my considered opinion there is no

illegality, perversity or jurisdictional error in the impugned

judgment passed by learned lower appellate Court. Both the

parties would get opportunity to prove their case during trial

before the trial Court.

8. Accordingly, this appeal being meritless is hereby

dismissed in limine.

(Rajendra Kumar (Verma)) Judge SJ