Balchand vs Dharamchand
2022 Latest Caselaw 14896 MP

                                                          1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                          BEFORE
                                            HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                ON THE 15th OF NOVEMBER, 2022

                                               MISC. APPEAL No. 3551 of 2018

                                     BETWEEN:-
                                1.   BALCHAND S/O BHAROSE PRAJAPATI, AGED
                                     ABOUT      60   YEARS, OCCUPATION: SELF
                                     EMPLOYED R/O VILLAGE BHANGARH, TAHSIL
                                     BINA, DIST. SAGAR (MADHYA PRADESH)

                                2.   KALLU S/O LATE NANHA PRAJAPATI, AGED
                                     ABOUT 45 YEARS, VILLAGE BHANGARH TAH.
                                     BINA (MADHYA PRADESH)

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

                                     AND
                                1.   DHARAMCHAND S/O RAMSEVAK PRAJAPATI,
                                     AGED  ABOUT   58 YEARS, R/O VILLAGE
                                     BHANGARH, TAHSIL BINA, DIST. SAGAR
                                     (MADHYA PRADESH)

                                2.   LAXMAN S/O RAMSEVAK PRAJAPATI, AGED
                                     ABOUT 55 YEARS, VILLAGE BHANGARH TAH.
                                     BINA (MADHYA PRADESH)

                                3.   RAJBAI D/O RAMSEVAK PRAJAPATI, AGED
                                     ABOUT 45 YEARS, BEHIND P.S STATIN BINA
                                     (MADHYA PRADESH)

                                4.   GUDDIBAI D/O LATE NANHA PRAJAPATI, AGED
                                     ABOUT 45 YEARS, VILLAGE MUNGAWALI
                                     DISTT. ASHOK NAGAR (MADHYA PRADESH)

                                5.   SUNITA D/O LATE NANHA PRAJAPATI, AGED
                                     ABOUT 42 YEARS, LADEDEHI TAH. CHANDERI
                                     (MADHYA PRADESH)

Signature Not Verified
                                6.   RUKMANI D/O LATE NANHA PRAJAPATI, AGED
                                     ABOUT 37 YEARS, VILLAGE MAHADEV KHEDI
  SAN




Digitally signed by AMIT JAIN
                                     TAH. BINA (MADHYA PRADESH)
Date: 2022.11.15 19:44:47 IST



                                7.   MULA D/O LATE BHAROSE PRAJAPTI, AGED
                                                              2
                                        ABOUT 47 YEARS, VILLAGE BHANGARH TAH.
                                        BINA (MADHYA PRADESH)

                                8.      SUMANTRA D/O LATE BHAROSE PRAJAPTI,
                                        AGED ABOUT 49 YEARS, VILLAGE BHANGARH
                                        TAH. BINA (MADHYA PRADESH)

                                9.      GAJRAJ S/O LATE KOMAL, AGED ABOUT 27
                                        YE A R S , VILLAGE BHANGARH TAH. BINA
                                        (MADHYA PRADESH)

                                10.     NAIB TAHSILDAR CIRCLE BHANGARH TAH.
                                        BINA DIST. SAGAR (MADHYA PRADESH)

                                11.     STATE OF M.P. THROUGH COLLECTOR DISTT.
                                        SAGAR (MADHYA PRADESH)

                                                                                             .....RESPONDENTS
                                        (NONE)

                                      This appeal coming on for admission this day, th e court passed the
                                following:
                                                                    ORDER

Shri Jaideep Sirpurkar, learned counsel for the appellants. None for the respondents though on the last date of hearing i.e. 28.10.2022, one Shri Ajay Chaturvedi, Advocate had appeared for the respondents and had submitted that he be granted two weeks' time to retrieve his file. On his request, the case was directed to be listed today and when it is taken up for hearing, nobody is appearing for the respondents.

This Miscellaneous Appeal is filed under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 being aggrieved of judgment dated 27.6.2018 passed by learned 2nd Additional District Judge Bina, District Sagar in Regular Civil Appeal No.18A/2015 remanding the matter to the Trial Court directing it to decide the application under Section 45 of the Indian Evidence Act, 1872 first Signature Not Verified SAN

and then decide the suit afresh.

Digitally signed by AMIT JAIN

Learned counsel for the appellants submits that earlier the application Date: 2022.11.15 19:44:47 IST

under Section 45 of the Indian Evidence Act, 1872 was dismissed by the Trial Court vide order dated 17.5.2013 with liberty to revive the prayer at an appropriate time. In terms of the said liberty, no application had even moved by the plaintiffs under Section 45 of the Indian Evidence Act, 1872 till the suit was decided and, therefore, for the fault of the plaintiffs, the 1st Appellate Court erred in remanding the matter without framing any issue and blanketly directing the Trial Court to decide the application under Section 45 of the Indian Evidence Act, 1872.

The aforesaid practice of wholesale remand is condemnable in view of the judgment of a Coordinate Bench of this Hon'ble High Court in Vipin Kumar & Others versus Sarojani 2013 (1) M.P.L.J 480. T he impugned judgment dated 27.6.2018 passed by learned 2nd Additional District Judge Bina, District Sagar in Regular Civil Appeal No.18A/2015 cannot be given a seal of approval and it is hereby set aside. Matter is remanded to learned 2nd Additional District Judge Bina, District Sagar to decide the appeal after taking evidence at its own level within a period of sixty days from the date of receipt of certified copy of the order being passed today.

In above terms, this Miscellaneous Appeal is disposed of.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2022.11.15 19:44:47 IST