Madhya Pradesh High Court
Sahelibai vs Mangilal on 21 August, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 17th OF AUGUST, 2023
MISC. APPEAL No. 2429 of 2008
BETWEEN:-
SHIVRAM YADAV & 2 ORS. S/O CHHITAR YADAV, AGED
1. ABOUT 50 YEARS, OCCUPATION: FARMING
KHATEGAON,DEWAS (MADHYA PRADESH)
DAYARAM S/O CHHITA YADAV, AGED ABOUT 60 YEARS,
2. OCCUPATION: FARMING KHATEGAON,DEWAS (MADHYA
PRADESH)
SHANTABAID/O CHHITAR YADAV W/O RAMESH YADAV, AGED
3. ABOUT 40 YEARS, OCCUPATION: FARMING
KHATEGAON,DEWAS (MADHYA PRADESH)
.....APPELLANTS
(MR. VEER KUMAR JAIN, SENIOR ADVOCATE WITH MS. VAISHALI
JAIN, ADVOCATE FOR APPELLANTS)
AND
SUNITABAI YADAV & ANOTHERSHIVRAM YADAV, AGED
ABOUT 30 YEARS, OCCUPATION: HOUSEHOLD
1.
KHILLIKHEDA,TEH.GOORGANJ,RAESEN (MADHYA
PRADESH)
STATE OF M.P. THRU:COLLECTOR DEWAS (MADHYA
2.
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
This appeal coming on for hearing this day, the court
passed the following:
ORDER
This is an appeal preferred against the judgment and decree
passed by Additional District Judge, Kannod, District-Dewas (MP)
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Signed by: ARUN NAIR
Signing time: 22-08-
2023 17:48:31
dated 23.06.2008 in Regular Civil Appeal No.37-A/2007 whereby
the judgment and decree passed by the Civil Judge, Class-II,
Khategaon, District-Dewas in Civil Suit No.54-A/2006 dated
27.10.2007 has been set-aside and remanded back to be decided
again.
(2) The brief facts of the case are that the respondent No.1 is the
daughter of the appellant No.1. Appellant No.2 and 3 respectively
are the brother and the sister of the appellant No.1. The respondent
No.1 filed the present suit for declaration, partition and possession
against the appellants. The respondent No.1 mentioned that her
grand-father has left the suit property bearing survey Nos.232/1,
263, 264, 265, 266, 267, 288, 289 and 290, total raqba is 8.99
acres of land in village - Nayapura, Tehsil-Khategaon, District-
Dewas (MP), therefore the respondent No.1 claimed the suit
property as his ancestral property. The respondent No.1 further
submitted that appellant No.1 is having one third share in the suit
property. The respondent No.1 further claimed that appellant No.1
is not giving her due share in the property and is enjoying it alone.
She has further submitted that she is the only legitimate daughter
of the appellant No.1, therefore she claimed half of the share of
her father in the present suit.
(3) Counsel for the appellants submitted that appellants filed a
common written statement to the plaint and has stated that the suit
property is not an ancestral property, therefore respondent No.1
could not claim half of the portion of the appellant No.1' share. It
was further mentioned in the written statement that appellant No.1
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is also having five other children, therefore the respondent No.1
cannot claim half of the appellant No.1 share. It was further
mentioned in the written statement that respondent No.1 has not
made the five children as parties to the suit, therefore the suit
suffers from non-joinder of necessary parties. Further it was also
mentioned that appellant No.2 and 3 are unnecessarily made
parties to the suit, therefore, the suit is further suffering from
defect of misjoinder of parties. It was also mentioned that
respondent No.1 has not paid proper court fees and therefore prays
that the suit be dismissed.
(4) The learned trial Court after the evidence and after hearing
both the parties has dismissed the suit of respondent No.1. The
trial court has gave the finding that appellant is having one third
share in the suit property and on the basis of evidence, the trial
Court gave the finding that Krishnabai is the legal wife of
appellant No.1, therefore her five children are also legal children.
Therefore trial Court has stated that respondent No.1 cannot claim
half of the share of appellant No.1 in the suit property. Hence, the
suit was dismissed by the trial Court.
(5) That, being aggrieved by the judgment and decree of the
trial Court, respondent No.1 filed an appeal before the Additional
District Judge and after hearing the arguments had observed that
learned trial Court has not framed and decided certain issues in the
case and therefore, the learned first appellate Court framed three
additional issues, which are as follows:
(a) Whether under Section 6 of the Hindu
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Succession (Amendment) Act, 2005, plaintiff is
entitled to declaration, partition and possession from
the appellants ?
(b) Whether the plaintiff has paid proper court fees
according to the relief prayed ?
(c) Whether the plaint is suffering from non-joinder
of necessary parties ?
(6) The learned first appellate Court after setting aside the
judgment and decree has remanded back the case to the trial Court
to be decided on these issues. It may be mentioned that the learned
first appellate Court was of the opinion that the additional issue is
a legal issue and that the other two additional issues are arising
from the objection raised by the appellants and the appellants did
not make any grievance with regard thereto. Even the respondent
No.1 did not raise any grievance with regard to the additional issue
No.1 and did not raise any grievance with regard to additional
issue No.a and the issues No.1 and 2 are fully and substantially
cover the additional issue No.a. It was further submitted that the
learned first appellate Court has failed to consider that none of the
additional issues requires any evidence and even if any evidence is
necessary, the learned appellate Court should have called the
findings on the said issues. The learned first appellate Court totally
lost sight of the provision of Order XLI Rule 23, 24 and 25 of
CPC.
(7) This miscellaneous appeal has been filed on the ground that
the learned first appellate Court has erred in holding that there was
any necessity of framing of any additional issues and also submits
that the judgment and decree of the first appellate Court are
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contrary to the law and facts of the case and material on record. It
is stated that all the issues are fully covered to each other and these
issues are legal issues and there is no need to take any evidence
and the first appellate Court ought to have decided the additional
issue, as provided under Order 41 Rule 24 of CPC and hence prays
for allowing of this appeal and setting aside the impugned
judgment and decree passed by learned trial Court.
(8) No one had appeared on behalf of the respondents despite
the fact that the matter is of final hearing.
(9) I have heard counsel for the appellants at length and have
perused the record.
(10) In the present case, the question involved is whether the first
appellate Court was justified in framing additional issues and after
framing of additional issues, the case could have been remanded
for fresh trial. In this regard, the provision of law regarding
remand of case by the appellate Court are contained in Rule 23, 24
and 25 of Order XLI of Code of Civil Procedure, 1908, which
reads as under:-
"23. Remand of case by Appellate Court.- Where
the Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if
it thinks fit, by order remand the case, and may further
direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is
preferred, which directions to re-admit the suit under its
original number in the register of civil suits, and proceed
to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand."
"24. Where evidence on record sufficient Appellate
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Court may determine case finally.- Where the evidence
upon the record is sufficient to enable the Appellate
Court to pronounce judgment, the Appellate Court may,
after resettling the issues, if necessary, finally determine
the suit, notwithstanding that the judgment of the Court
from whose decree the appeal is preferred has proceeded
wholly upon some ground other than that on which
Appellate Court proceeds."
"25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed
from.- Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit
upon the merits the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court
from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional
evidence required; and such Court shall proceed to try
such issues, and shall return the evidence to the
Appellate Court together with its findings thereon and
the reasons therefor within such time as may be fixed by
the Appellate Court or extended by it from time to time."
(11) On perusal of the record, it was found that in the present
case no plea was taken to remand the case back for retrial and it
was also noticed that the first appellate Court has failed to provide
any reason as to why the particular matter has been remanded back
showing the act of remanding back is erroneous in nature. It is also
noticed that there is no grievance raised by any of the parties
before the first appellate Court and that there was a failure on the
part of trial Court in discharging its functions in framing the issue
and none of the parties have put-forth any submission for any
additional issue or any specific issue. A perusal of the record also
shows that the appellants have never intended to remand the
matter back to the trial Court or shown any interest to frame the
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additional issue.
(12) The Apex Court in the case of Syeda Rahimunnisa v.
Malan BI 2016 10 SCC 315 held in para 36 as under:-
"It is a settled principle of law that in order to claim
remand of the case to the trial Court, it is necessary
for the appellant to first raise such plea and then make
out a case of remand on facts. The power of the
appellate Court to remand the case to the subordinate
court is contained in Order 41 Rules, 23, 23-A and 25
CPC. It is, therefore, obligatory upon the appellant to
bring the case under any of these provisions before
claiming a remand. The appellate Court is required to
record reasons as to why it has taken recourse to
anyone out of the three Rules of Order 41 CPC for
remanding the case to the trial Court. In the absence
of any ground taken by the respondents (the appellants
before the first appellate Court and the High Court)
before the first appellate Corut and the High Court as
to why the remand order in these cases is called for
and if so under which Rule of Order 41 CPC and
further in the absence of any finding, there was no
justification on the part of the High Court to remand
the case to the trial Court."
A similar view has been taken by the Hon'ble MP High
Court in the matter of Murari Lal vs. Ram Kumar Oza reported
in 2015(1) MPLJ 243.
(13) It was found that all the issues were additional issues framed
by the first appellate Court is a question of law and that there is no
need of further evidence and it was decided by the first appellate
court in appeal and therefore the order passed by the first appellate
Court is not correct in the eyes of law and it should be set-aside.
Hence in view of settled legal position, the impugned judgment
and decree passed by the first appellate Court is set-aside and the
matter is remanded back to the first appellate Court with a
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Signed by: ARUN NAIR
Signing time: 22-08-
2023 17:48:31
direction to decide the appeal on merit within a period of four
months after receiving the record. Accordingly, the miscellaneous
appeal filed by the appellants stands disposed of.
(HIRDESH)
Arun/- JUDGE
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 22-08-
2023 17:48:31
