Smt. Radha vs Smt. Seema
2022 Latest Caselaw 14231 MP

                                                    1
                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 3rd OF NOVEMBER, 2022

                                         MISC. APPEAL No. 2523 of 2019

                               BETWEEN:-
                          1.   SMT. RADHA W/O LATE RAJESH GUPTA, AGED
                               ABOUT    42   YEARS, R/O  MAIN    ROAD
                               CHOTIBAZAR CHHINDWARA TAH. AND DISTT.
                               CHHINDWARA M.P. (MADHYA PRADESH)

                          2.   SMT. POOJA W/O LATE RAHUL GODRE, AGED
                               ABOUT 28 YEARS, CHAND NAKA, TAHSIL AND
                               DISTT CHHINDWARA (MADHYA PRADESH)

                          3.   AARTI D/O LATE RAJESH GUPTA, AGED ABOUT
                               25 YEARS, R/O MAIN ROAD, CHOTIBAZAR
                               CHHINDWARA      TAHSIL    AND      DISTT
                               CHHINDWARA (MADHYA PRADESH)

                          4.   DEEPAK S/O LATE RAJESH GUPTA, AGED
                               ABOUT    18   YEARS, R/O MAIN   ROAD,
                               CHOTIBAZAR CHHINDWARA TAHSIL AND
                               DISTT CHHINDWARA (MADHYA PRADESH)

                          5.   SHRADDHA D/O LATE RAJESH GUPTA, AGED
                               ABOUT 16 YEARS, OCCUPATION: MINOR THR.
                               NATURAL GUARDIAN APP. NO.1 R/O MAIN
                               ROAD, CHOTIBAZAR CHHINDWARA TAHSIL
                               AND DISTT CHHINDWARA (MADHYA PRADESH)

                                                                           .....APPELLANTS
                               (BY SHRI JAIDEEP SIRPURKAR, ADVOCATE FOR THE
                               APPELLANTS. )

                               AND
                          1.   SMT. SEEMA W/O LATE RAJESH GUPTA, AGED
                               ABOUT 49 YEARS, R/O VILL. PAWNAR TAH.
                               AMARWARA DISTT.     CHHINDWARA M.P.
                               (MADHYA PRADESH)

                          2.   SMT. REKHA W/O LATE RAJESH GUPTA, AGED
                               ABOUT 47 YEARS, R/O VILLAGE MISROD
                               TAHSIL AND DISTT CHHINDWARA (MADHYA
                               PRADESH)
Signature Not Verified
Signed by: VINOD SHARMA
Signing time: 11/7/2022
10:41:11 AM
                                                              2
                          3.      SMT. POONAM W/O PRAKASH KAUSHAL, AGED
                                  ABOUT 41 YEARS, R/O DEWAS, TAHSIL AND
                                  DISTT DEWAS (MADHYA PRADESH)

                          4.      STATE OF MADHYA PRADESH THR. THE
                                  COLLECTOR TAHSIL AND DISTT CHHINDWARA
                                  (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                                  (BY MS. SANJNA SAHNI, ADVOCATE FOR THE RESPONDENTS. )

                                This appeal has come up for hearing on this day and the court passed
                          the following:
                                                              ORDER

This Miscellaneous Appeal is filed by the defendants being aggrieved of the judgment dated 03.04.2019 passed by the learned First Additional District

Judge, Chhindwara (M.P.) in Regular Civil Appeal No.12/2018 remanding the matter for impleadment of the adopted son and then permitting him to lead evidence without there being any application by the said adopted son for impleadment and there being specific pleading on behalf of the plaintiff that the adopted son has no share in the property.

It is submitted that the suit was dismissed on one of the grounds that adopted son is a necessary party and, therefore, the said defect could not have been cured by the First Appellate Court and matter should not have been remanded in a wholesale manner without framing any issues in this behalf.

It is submitted that the impugned judgment is contrary to the law laid by the Hon'ble Supreme Court in the case of Aspi Jal And Anr vs Khushroo Rustom Dadyburjor 2013(4) SCC 333. The judgment of coordinate Bench of this Court in Vipin Kumar and Others Vs. Sarojni 2013 (1) MPLJ 480, which has detailed out contingencies available to direct remand by the appellate Court and has held that in absence of said contingencies remand is not Signature Not Verified Signed by: VINOD SHARMA Signing time: 11/7/2022 10:41:11 AM

permissible.

Taking these facts into consideration, impugned order of remand appears to be arbitrary and illegal. It is set aside being contrary to the law laid down by the coordinate Bench in Vipin Kumar (supra). The matter is remitted to the appellate Court to decide the appeal on its own merits within a period of 60 days from the date of receipt of the certified copy of this order.

Accordingly, this appeal stands disposed of.

(VIVEK AGARWAL) JUDGE Vin**

Signature Not Verified Signed by: VINOD SHARMA Signing time: 11/7/2022 10:41:11 AM