Smt. Savita Ahirwar vs Smt. Malti Asati
2023 Latest Caselaw 16804 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 10 th OF OCTOBER, 2023
                                               MISC. APPEAL No. 1892 of 2020

                           BETWEEN:-
                           SMT. SAVITA AHIRWAR W/O GORELAL AHIRWAR,
                           AGED ABOUT 48 YEARS, R/O. GHAT TARMASAN
                           PRESENT ADD. BALDEVGARH TEH BALDEVGARH
                           (MADHYA PRADESH)

                                                                                           .....APPELLANT
                           (BY SHRI SAKET AGRAWAL - ADVOCATE)

                           AND
                           1.    SMT. MALTI ASATI W/O NANDKISHOR ASATI W/O.
                                 NARENDRA ARYA, AGED ABOUT 47 YEARS, R/O.
                                 GHAT TARMASAN PRESENT ADD. BALDEVGARH
                                 TEH BALDEVGARH (MADHYA PRADESH)

                           2.    STATE OF MADHYA PRADESH THR. COLLECTOR
                                 DISTT-TIKAMGARH (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                           (BY SHRI DEEPAK AWASTHI - ADVOCATE FOR RESPONDENT NO.1)
                           (BY SHRI JITENDRA SHRIVASTAVA - PANEL LAWYER FOR THE STATE)

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

This appeal is filed by the defendant being aggrieved of judgment dated 10.02.2020 passed by the learned 5th Additional District Judge, Tikamgarh in Appeal No.68 of 2018 remanding the matter to the Trial Court.

It is submitted that suit was decreed by the trial Court against that an appeal was filed by the present appellant without framing any issued it

Signature Not Verified remanded the matter, asking the trial Court to allow an application under Order Signed by: MOHD TABISH KHAN Signing time: 10/11/2023 7:25:46 PM

26 Rule 9 CPC and in a way permitted de Nova trial.

Reliance is placed on the decision of a Coordinate Bench in M.A. No.1141/2007 decided on 31.08.2005 wherein it is held as under-:

"It is well settled in law that the power of remand has to be exercised with great circumspection and should not be exercised in casual and cavalier manner. It should not be exercised when the case is not covered either by Rule 23 or 23-A of Order XLI of the Code of Civil Procedure as an unwarranted order of remand unnecessary prolongs the litigation, which in all fairness should be avoided. [see: P. Purushootam Reddy and Another Vs. Pratap Steels Ltd., (2002) 2 SCC 686 and Bachahan Devi Vs. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372.

It is well settled in law that even the appellate court itself can appoint a Commissioner in case Mangilal and Another Vs. Gaurishanker & Others, AIR 1992 MP 309. The Lower Appellate Court has passed the impugned order of remand dehors the provisions contained in Order 41 Rules 23 to 25 of the Code of Civil Procedure. The impugned order, therefore, cannot be sustained in the eye of law. Accordingly, it is quashed. The Lower Appellate Court is directed to decide the appeal on merits. In case, the Lower Appellate Court comes to the conclusion that the dispute between the parties pertains to encroachment, which cannot be decided without appointment of the commissioner, the Lower Appellate Court would be at liberty to appoint a Commissioner and to remit the matter to the trial Court on the limited issued while retaining the seisin of the appeal."

Shri Deepak Awasthi, learned counsel for the respondent No.1 submits that in fact appellant is an encroacher, now with a view to determine the extent of encroachment, matter has been remanded. There is no illegality in the impugned judgment calling for interference.

Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/11/2023 7:25:46 PM

After hearing learned counsel for the parties and going through the record, also taking this fact into consideration that a Coordinate Bench placing reliance on the judgment of Hon'ble Supreme Court in P. Purushootam Reddy and Another Vs. Pratap Steels Ltd., (2002) 2 SCC 686 and Bachahan Devi Vs. Nagar Nigam, Gorakhpur (2008) 12 SCC 372 has held that the remand unnecessary prolongs the litigation.

Placing reliance on the judgment of Madhya Pradesh High Court in Mangilal and Another Vs. Gaurishanker & Others, AIR 1992 MP 309, it is held that even Appellate Court itself can appoint a Commissioner, I am of the opinion that the order of remand needs to be set aside, Appellate Court if so desire may appoint a Commissioner and after obtaining the report may decide the appeal on its own merits.

Let this exercise be carried out within a period of sixty days from the date of receipt of certified copy of the order being passed today.

In above terms, this appeal is disposed of. Record of the Court below be sent back immediately. Certified copy as per rules.

(VIVEK AGARWAL) JUDGE Tabish

Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/11/2023 7:25:46 PM