Jammu Lal vs Moolchand
2022 Latest Caselaw 13405 MP

                                                                     1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                     BEFORE
                                                       HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                           ON THE 12th OF OCTOBER, 2022

                                                    MISCELLANEOUS APPEAL No. 2315 of 2021

                                              BETWEEN:-
                                              JHAMMU     LAL S/O    SHRI   DEVLAL
                                              SINGOTIYA, AGED ABOUT 63 YEARS,
                                              OCCUPATION: RETIRED RESIDENT OF
                                              JABALPUR PASHU CHIKITSA VIBHAG
                                              SHARDA CHOWK JABALPUR POST GARHA
                                              TAHSIL AND DISTRICT JABALPUR (M.P.)

                                                                                              .....PETITIONER
                                              (BY SHRI SHASHANK PANDEY - ADVOCATE)

                                              AND
                                              MOOLCHAND     S/O     SHRI DEVLAL
                                              SINGOTIYA, AGED ABOUT 69 YEARS,
                                              NAINPUR WARD NO.15 TAHSIL NAINPUR
                                              DISTRICT MANDLA (M.P.)

                                                                                             .....RESPONDENT
                                              (BY SHRI ADITYA VYAS - ADVOCATE)

                                             This appeal coming on for hearing this day, the court passed the
                                       following:
                                                                      ORDER

This miscellaneous appeal under Order 43 Rule 1(u) of the Civil Procedure Code, 1908, has been filed by the defendant being aggrieved of impugned judgment and decree dated 09.09.2021 passed by the learned

3rd Additional District Judge, Circuit Court Nainpur, District Mandla in RCA No.100020/2018, whereby learned appellate court has set aside the

Signature Not Verified judgment and decree dated 27.11.2017 passed by the learned First Civil SAN

Digitally signed by PUSHPENDRA PATEL Date: 2022.10.13 17:13:21 IST

Judge, Class-I, Mandla and remanded the matter back to the trial Court to provide opportunity to both the parties to give their additional evidence and decide the suit afresh.

It is submitted that no issues have been framed after accepting an application under Order 41 Rule 27, CPC. Remand order is erroneous.

Shri Aditya Vyas, learned counsel for the respondent supports the impugned judgment and decree.

After hearing learned counsel for the parties and going through the record and also taking into consideration law laid down by a co-ordinate Bench of this Court in case of Vipin Kumar and others Vs. Sarojani, 2013(1) M.P.L.J. 480 , this Court is of the opinion that the order of

remand is not sustainable in the eyes of law as neither any issues have been framed and de novo trial is not permissible under the eyes of law.

In view of above, impugned order is set aside. Matter is remitted to

the learned 3rd Additional District Judge, Circuit Court Nainpur, District Mandla to decide the appeal on its own merits on the basis of the available evidence and the application which was allowed under Order 41 Rule 27, CPC.

Accordingly, this appeal is allowed.

(VIVEK AGARWAL) JUDGE pp

Signature Not Verified SAN

Digitally signed by PUSHPENDRA PATEL Date: 2022.10.13 17:13:21 IST