Madhya Pradesh High Court
Smt. Nazma Begum vs Julekha Bi on 11 July, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF JULY, 2022
MISC. APPEAL No. 1852 of 2015
Between:-
1. SMT. NAZMA BEGUM W/O LATE BAHADUR
KHAN , AGED ABOUT 60 YEARS, BEHIND SALES
TAX OFFICE, AAZAD CHOWK, DIWANCHI
MOHALLA, CHHINDWARA (MADHYA PRADESH)
2. VAHID S/O LATE BAHADUR , AGED ABOUT 35
YEAR S, BEHIND SALES TAX OFFICE, AAZAD
CHOWK, DIWANCHI MOHALLA, CHHINDWARA
(MADHYA PRADESH)
3. SHABANA BEGUM W/O NAWAB KHAN , AGED
ABOUT 30 YEARS, BEHIND SALES TAX OFFICE,
AAZAD CHOWK, DIWANCHI MOHALLA,
CHHINDWARA (MADHYA PRADESH)
4. JAHID KHAN S/O LATE BAHADUR KHAN , AGED
ABOUT 30 YEARS, BEHIND SALES TAX OFFICE,
AAZAD CHOWK, DIWANCHI MOHALLA,
CHHINDWARA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI JAIDEEP SIRPURKAR, ADVOCATE)
AND
1. JULEKHA BI W/O MAKBOOL KHAN , AGED
ABOUT 46 YEARS, AAZAD CHOWK, TAHSIL AND
DISTT. CHHINDWARA (MADHYA PRADESH)
2. JAVED KHAN S/O MAKBOOL KHAN , AGED
ABOUT 23 YEARS, AAZAD CHOWK, TAHSIL AND
DISTT. CHHINDWARA (MADHYA PRADESH)
3. AASHMA D/O MAKBOOL KHAN , AGED ABOUT
19 YEARS, AAZAD CHOWK, TAHSIL AND DISTT.
Signature Not Verified
CHHINDWARA (MADHYA PRADESH)
SAN
Digitally signed by VAIBHAV YEOLEKAR 4. RESHMA D/O MAKBOOL KHAN , AGED ABOUT
21 YEARS, AAZAD CHOWK, TAHSIL AND DISTT.
Date: 2022.07.14 10:22:02 IST
CHHINDWARA (MADHYA PRADESH)
2
5. AABIDA KHAN D/O MAKBOOL KHAN , AGED
ABOUT 18 YEARS, AAZAD CHOWK, TAHSIL AND
DISTT. CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This Miscellaneous Appeal is filed under Order 43 Rule 1 (U) of the
Code of Civil Procedure, 1908 being aggrieved of judgment and order dated
27/08/2015 passed by the learned Additional Judge to the court of 1st
Additional District Judge, Chhindwara in Civil Appeal No. 08-A/2013
remanding the matter to the trial court after allowing an application under Order
41 Rule 27 C.P.C. filed by the defendants/tenant and also an application under
Order 6 Rule 17 filed on the basis of documents which were annexed along with
the application under Order 41 Rule 27.
Learned counsel for the appellants submits that a perusal of the
application under Order 41 Rule 27 reveals that some order sheets in Revenue
case No. 108/Aa-20/2003-04 from the court of Nazul Officer, Chhindwara have
been produced by the defendants.
It is submitted that infact the dispute between the present appellants and
the defendants is in regard to eviction and mesne profits that the suit was
decreed by the trial court. Learned Additional District Judge has admitted in
para 24 that the plaintiffs had filed the final order passed in said revenue case
no. 108/b-2003-2004 and had produced a copy of renewed lease deed as Ex. P-
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.07.14 10:22:02 IST
It is an admitted position that no order sheets prior to filing of the final
order which is already on record as Ex. P-2 can be said to be not within the
knowledge of the defendants, author of the application under Order 46 Rule 27
when admittedly final order is on record Ex. P-2 as was filed by the plaintiffs.
Therefore, the learned Additional District Judge has erred in allowing the
application under Order 41 Rule 27 and then consequently allowing the
application under Order 6 Rule 17 C.P.C. Moreover, it is submitted that
allowing these applications is incorrect but also the learned Additional District
Judge Shri J. Michael Rao has remanded the matter without formulating any
issue on which matter was sought to be remanded.
It is submitted that it is in violation of the provisions contained in Order
41 Rule 23, 23-A, 24 and 25 C.P.C. It was mandatory for the first appellate
court to have formulated the issue on the basis of which it decided to remand
the matter.
After hearing learned counsel for the appellants as nobody is appearing
for the respondents, though names of learned counsel for the respondents is
appearing in the cause list, it is evident that this wholesale remand made by the
learned 1st Additional Judge to the court of 1st Additional District Judge,
Chhindwara is in violation of the provisions contained in Order 41 Rule 23-A
C.P.C.
There was no justification in allowing the application under Order 41 Rule
27 and Order 6 Rule 17. The impugned order and judgment is quashed. Matter
is remitted to the learned Additional District Judge to decide the appeal on its
own merits within a period of thirty days from the date of receipt of order being
passed today.
Signature Not Verified
SAN
In above terms, the appeal is disposed of.
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.07.14 10:22:02 IST
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.07.14 10:22:02 IST
