Madhya Pradesh High Court
Savitribai vs Basantibai on 24 July, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 24 th OF JULY, 2023
MISC. PETITION No. 433 of 2023
BETWEEN:-
1. SAVITRIBAI WD/O LATE SH. BABULAL CHAMAR,
AGED ABOUT 61 YEARS, OCCUPATION:
HOUSEWIFE R/O GRAM GUJARI TEHSIL
DHARAMPURI, DISTRICT DHAR (MADHYA
PRADESH)
2. MAHESH S/O LATE SHRI BABULAL CHAMAR,
AGED ABOUT 35 YEARS, R / O GRAM GUJARI,
TEHSIL DHARAMPURI, DISTRICT DHAR
(MADHYA PRADESH)
3. RAJESH S/O LATE SHRI BABULAL, AGED ABOUT
33 YEARS, OCCUPATION: AGRICULTURIST R/O
GRAM GUJARI, TEHSIL DHARAMPURI, (MADHYA
PRADESH)
4. SUBHASH S/O LATE SHRI BABULAL CHAMAR,
AGED ABOUT 30 YEARS, OCCUPATION : R/O
AGRICULTURIST GRAM GUJARI, TEHSIL
D HAR AM PUR I , DISTRICT DHAR (MADHYA
PRADESH)
5. VIKAS S/O LATE SHRI BABULAL CHAMAR, AGED
ABOUT 28 YEARS, OCCUPATION: AGRICULTURIST
R / O GRAM GUJARI, TEHSIL DHARAMPURI,
DISTRICT DHAR (MADHYA PRADESH)
.....PETITIONERS
(SHRI ROHIT KUMAR MANGAL, LEARNED COUNSEL FOR THE
PETITIONERS)
AND
1. BASANTIBAI W/O GAJANAND CHAMAR R/O
GRAM MEHATWADA, TEHSIL MAHESHWAR,
DISTRICT KHARGONE INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
2
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR KHARGONE, DISTRICT KHARGONE
(MADHYA PRADESH)
3. SHANTABAI D/O LATE SHRI DHAMYA W/O
MOTIRAM, AGED ABOUT 62 YEARS, R/O
KAKADDA, TEHSIL MAHESHWAR DISTRICT
KHARGONE (MADHYA PRADESH)
4. JANKIBAI D/O LATE SHRI DHAMYA W/O RAMLAL,
AGED ABOUT 60 YEARS, R/O GRAM BHOWANIA,
TEHSIL DHARAMPURI, DISTRICT KHARGONE
(MADHYA PRADESH)
5. SANTOSH S/O DHAMYA, AGED ABOUT 42 YEARS,
R/O GRAM KAKADDA, TEHSIL MAHESHWAR
(MADHYA PRADESH)
6. HUKUM S/O DHAMYA DECEASED THROUGH
LEGAL REPRESENTATIVES
A. KALABAI D/O HUKUM R/O GRAM KADADDA,
TEHSIL MAHESHWAR (MADHYA PRADESH)
B. RAHUL S/O HUKUM, AGED ABOUT 26 YEARS,
R/O GRAM KADADDA, TEHSIL MAHESHWAR
(MADHYA PRADESH)
C. RUPA D/O HUKUM W/O JITENDRA R/O GRAM
KUKUMBIA, TEHSIL MAHESHAR (MADHYA
PRADESH)
D. PAYAL D/O HUKUM, AGED ABOUT 20 YEARS,
R/O GRAM KADADDA, TEHSIL MAHESHWAR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SAGAR KHARTE, LEARNED COUNSEL FOR RESPONDENT NO.1)
(SHRI A.S.PARIHAR, LEARNED PANEL LAWYER FOR RESPONDENT
NO.2/STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition is filed by the petitioners/defendants
challenging the orders dated 04.01.2023 (Annexure P-13) and 09.01.2023
(Annexure P-14) passed by the learned I Civil Judge, Junior Division,
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
Maheshwar in RCS No.15-A/2015.
2. The respondent no.1/plaintiff filed a civil suit against the petitioners seeking
relief of declaration of title on the basis of a Will executed by late Smt. Nanibai
in favour of respondent no.1 dated 16.12.2009. The petitioners/defendants
raised a plea that the property in dispute had already been partitioned in their
favour, therefore, Nanibai has no right of title in the disputed property.
3. On 17.05.2017, learned trial Court allowed the civil suit filed by
respondent no.1 and granted a decree of declaration of title on the basis of the
said Will. The first appellate Court reversed the judgment of the trial Court vide
judgment and decree dated 09.05.2022 in Regular Civil Appeal No.14-A/2017
and remanded the matter to the trial Court for deciding the matter afresh after
considering the plea raised in appeal by the petitioners after taking the evidence
and amendments in pleadings etc.
4. The petitioners/defendants filed an application for framing additional issues
under Order 14 Rule 5 of CPC as well as filed another application for re-
examination of the plaintiff's witnesses. By the impugned order the trial Court
not only dismissed the application under Order 14 Rule 5 of CPC, but also
partly dismissed the application for re-examination of witnesses without taking
into consideration the direction issued by the first appellate Court. Hence, this
petition is filed under Article 227 of the Constitution of India on the ground that
the learned first appellate Court on 09.05.2022 has set aside the judgment and
decree passed by the trial Court and remanded the matter back to the learned
trial Court for deciding afresh after giving opportunity of hearing to both the
parties. The first appellate Court in paragraphs 19, 21 accepted the document of
respondent and then the matter was remanded to the trial Court for adjudication.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
The learned first appellate Court in paragraph 21 has held as under:-
"mijksDr laiw.kZ foospu ds vuqlkj oknh ds }kjk e`rd ukuhckbZ ds
lHkh mRrjkf/kdkfj;ksa dks i{kdkj u cuk;s tkus ds dkj.k okn esa
vko';d i{kdkjksa ds vla;kstu dk nks"k gSA vr% xq.knks"kksa ij dksbZ
vfHker O;Dr fd;s fcuk vihy ,oa e/;{ksidx.k dh vksj ls izLrqr
vkosnu varxZr vkns'k 1 fu;e 10 lhihlh va'kr% Lohdkj fd;k
tkdj fopkj.k U;k;ky; dk iz'uk/khu fu.kZ; o fMØh vikLr djrs
gq;s izdj.k vkns'k 41 fu;e 23&, lhihlh ds izko/kkuksa ds vuqlkj
fopkj.k U;k;ky; dks bl funsZ'k ds lkFk izfriszf"kr fd;k tkrk gS
fd oknh@izR;FkhZ Øekad 1 dks ukuhckbZ ds lHkh iq= o iqf=;ksa vkSj
;fn muesa ls fdlh dh e`R;q gks xbZ gks] rks muds mRrjkf/kdkfj;ksa
dks okni= esa la;ksftr djus dk volj iznku fd;k tkos vkSj ;fn
oknh muds laca/k esa dksbZ vfrfjDr vfHkopu djuk pkgs] rks mls
okni= esa la'kks/ku djus dk volj Hkh fn;k tkos rFkk blds i'pkr
uohu izfroknhx.k dks fof/k vuqlkj leu tkjh dj mRrj okni=
izLrqr djus dk volj fn;k tkos rFkk ;fn vko';d gks rks
vfrfjDr okniz'uksa dh jpuk dh tkos] rRi'pkr mHk;i{k dks lk{;
dk volj nsdj okn dk iqu% u;s fljs ls xq.knks"kksa ij fujkdj.k
fd;k tkosA lkFk gh [email protected] dh vksj ls izLrqr
vkosnu varxZr vkns'k 41 fu;e 27 lhihlh va'kr% Lohdkj dj
vknsf'kr fd;k tkrk gS fd izfroknhx.k dh vksj ls izLrqr jktLo iz-
Ø- 49&v 27@07&08 dh izekf.kr izfrfyfi;ksa rFkk [kljk o"kZ
2008&09 yxk;r 2011&12 ,oa o"kZ 2011 ls o"kZ 2018 dh izekf.kr
izfrfyfi;ksa dks vfrfjDr lk{; ds :i esa xzg.k fd;k tkosA mijksDr
izekf.kr izfrfyfi;ka fopkj.k U;k;ky; ds vfHkys[k ds lkFk Hksth tkosa
vkSj mudh QksVksizfr;ka vihy ds vfHkys[k esa j[kh tkosA"
5. Learned counsel for the petitioners submitted that the learned trial
Court committed serious error of law by dismissing the application under Order
14 Rule 5 of CPC on the ground that after framing of additional issues, matter
was fixed on various dates, but no application was filed. The learned trial Court
rejected the application on the ground of delay which is not sustainable in law
and the impugned orders deserve to be set aside. He further submitted that the
trial Court had committed error of law in not taking into consideration the issue
which was raised before the first appellate Court as considered in paragraph 19
of its judgment and remanded the matter for deciding the same, therefore, even
without filing an application the learned trial Court ought to have framed
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
additional issue. Hence, the impugned orders are not sustainable in law and
prays for setting aside the order of the trial Court dated 04.01.2023 (Annexure
P-13) and 09.01.2023 (Annexure P-14).
6. The learned counsel for respondent no.1 supports the orders impugned
and prays for dismissal of the petition.
7. I have heard the learned counsel for the parties and have perused the
impugned orders.
8. On perusal of the judgment and decree dated 09.05.2022 of the first
appellate Court in Regular Civil Appeal No.14A/2017 in paragraphs 19, 20 and
21, it is found that the learned first appellate Court accepted the document filed
by the appellants/defendants before the appellate Court and the appellate Court
remanded the matter for fresh adjudication to the trial Court with a direction to
give opportunity to the appellants/defendants for adducing additional issues.
9. The petitioners/defendants filed an application for framing new issue "D;k
ukuhckbZ ls cVokMs ds vk/kkj ij ckcwy ky dks fookfnr lai fRr esa LoRo izk Ir gks
x;s Fks vkSj ;fn gks x;s Fks] rks D;k ukuhckbZ ds }kjk mlh lai fRr dk olh;rukek
oknh ds i{k esa fu"ikfnr fd;k tk ldrk Fkk ?"
10. The trial Court rejected this application only on the ground of delay. A
Co-ordinate Bench of this Court in the case of Smt. Usha Saxena Vs. Sundar
Singh Bhadouriya and others reported in 2013 SCC Online MP 6408
held that Order 14 Rule 5 of CPC makes it crystal clear that the Court may at
any time before passing the decree amend the issues or frame the additional
issues. The provision further makes it clear that Court may strike out any issue
that appears to be wrongly framed or introduced any time before passing the
decree.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
11. The proposed issue may help the trial Court to adjudicate the case
properly. On perusal of the order of the trial Court and the above citation, it is
found that the trial Court has committed grave error in rejecting the petitioners'
application under Order 14 Rule 5 of CPC for framing additional issues and
also rejecting the application of the petitioners' under Section 151 of CPC for
re-examination of the plaintiff's witnesses vide orders dated 04.01.2023
Annexure P-13 and 09.01.2023 Annexure P-14.
12. The Hon'ble Apex Court in the case of Shivshankara and another Vs.
H.P.Vedavyasa Char reported in AIR 2023 SC 1780 held that it is settled
law that when a suit is remanded for a decision afresh with certain specific
directions, the jurisdiction of the trial Court after remand depends upon the
terms of the order of remand and the trial Court cannot either consider matters
other than those specified in the remand order, or enter into questions falling
outside its limit.
13. In the present case, the first appellate Court remanded the case for fresh
adjudication after giving opportunity to the appellants/defendants for framing
additional issues, but the trial Court denied to give opportunity for adducing
additional issues, therefore, the order of the trial Court is erroneous and
deserves to be set aside.
14. Accordingly, the petition is allowed. The impugned orders dated
04.01.2023 (Annexure P-13) and 09.01.2023 (Annexure P-14) are set aside. The
trial Court is directed to give opportunity to the petitioners/defendants for re-
examining the plaintiff's witnesses and if desired to adduce additional issues.
(HIRDESH)
JUDGE
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2023
18:37:34
