Kamlesh vs Prakash (Died) Through Lrs (A) ...
2023 Latest Caselaw 17417 MP

                                                          1
                            IN   THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 17 th OF OCTOBER, 2023
                                            MISC. APPEAL No. 254 of 2020

                      BETWEEN:-
                      KAMLESH S/O KISHANLAL RAI, AGED ABOUT 46 YEARS, R/O
                      LAXMI NAGAR, BURHANPUR DIST. BURHANPUR (M.P.)
                      (MADHYA PRADESH)

                                                                                 .....APPELLANT
                      (BY SHRI HEMANT KUMAR CHOUHAN - ADVOCATE)

                      AND
                      1.    PRAKASH (DIED) THROUGH LRS (A) SMT. DURGA BAI W/O
                            PRAKASH BANJARA, AGED ABOUT 48 YEARS, R/O HOUSE
                            NO. 72 WARD NO. 20, GRAM MATAPUR, DIFODIA, TAH.
                            KHAKNAR,    DISTT.  BURHANPUR    (M.P.) (MADHYA
                            PRADESH)

                      2.    SANJAY S/O PRAKASH BANJARA, AGED ABOUT 25 YEARS,
                            R/O HOUSE NO. 72 WARD NO. 20, GRAM MATAPUR,
                            DIFODIA, TAH. KHAKNAR, DISTT. BURHANPUR (M.P.)
                            (MADHYA PRADESH)

                      3.    GOPAL S/O PRAKASH BANJARA, AGED ABOUT 23 YEARS,
                            R/O HOUSE NO. 72 WARD NO. 20, GRAM MATAPUR,
                            DIFODIA, TAH. KHAKNAR, DISTT. BURHANPUR (M.P.)
                            (MADHYA PRADESH)

                      4.    MANJUSHREE D/O PRAKASH BANJARA, AGED ABOUT 19
                            YEARS, R/O HOUSE NO. 72 WARD NO. 20, GRAM MATAPUR,
                            DIFODIA, TAH. KHAKNAR, DISTT. BURHANPUR (M.P.)
                            (MADHYA PRADESH)

                      5.    NAVAL SINGH S/O JAIRAM RATHORE, AGED ABOUT 43
                            YE A R S , SANDESHKALA POST MAHALGULARA TAH.
                            NEPANAGAR (MADHYA PRADESH)

                      6.    STATE  OF    M.P. THROUGH         COLLECTOR DISTT.
                            BURHANPUR (MADHYA PRADESH)


Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 17-10-2023
18:35:54
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                                                                                            .....RESPONDENTS
                      (SHRI Y.M. TIWARI - ADVOCATE FOR THE RESPONDENT NOS.1 TO 4, SHRI ANIL
                      KUMAR DWIVEDI - ADVOCATE FOR THE RESPONDENT NO.5 AND SHRI ROHIT
                      JAIN - GOVERNMENT ADVOCATE FOR THE RESPONDENT NO.6)

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

This Miscellaneous Appeal is filed by the plaintiff being aggrieved of order dated 03.10.2019, passed by learned First Additional District Judge, Burhanpur (M.P.), in Civil Appeal No.2-A/2019, making a wholesale remand of the matter by framing almost identical issues which were already framed by the trial Court and decreeing the suit filed by the plaintiff i.e. present appellant.

The only one issue on which finding has been recorded by the learned First

Appellate Court is in regard to non-examination of the original agreement which was part of a criminal case. It is observed by the lower Appellate Court that in terms of the provisions contained in Sections 64 & 67 of the Evidence Act, plaintiff was required to produce original documents and if he was to produce secondary evidence, then documents should have been taken in consonance with the provisions contained in Section 65 of the Evidence Act.

Learned lower Appellate Court has recorded a finding that in the judgment and decree of the trial Court, it is mentioned that the original agreement is pending in another Criminal Case pending before the Court and, thus, the lower Appellate Court has held that in terms of the provisions contained in Order 13 Rule 10 CPC that record should have been called for and should have been examined before proceeding with the trial. This is the only issue on which case has been remanded to the trial Court.

I am afraid that learned lower Appellate Court has failed to appreciate the correct provisions contained under Order 41 Rule 23 CPC, which deals with remand of case by appellate Court if there was any doubt as to the authenticity of the agreement to sale on the basis of which plaintiff had filed a suit for specific performance, then it was open to Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 17-10-2023 18:35:54

the lower Appellate Court to have summoned that record and perused that document. If lower Appellate Court would have found that it was not duly registered, then it could have recorded its finding on the basis of the document instead of remanding the matter.

This wholesale remand is contrary to the law laid down by the decision of a Coordinate Bench in Vipin Kumar and others Vs. Sarojni [(2013) 1 MPLJ 480] and, therefore, impugned order cannot be sustained in the eyes of law. Impugned order is set aside. Matter is remanded to the lower Appellate Court to call for the record from the concerned Criminal Case and decide the appeal on its own merits. Let aforesaid exercise be carried out within a period of thirty days from the date of receipt of certified copy of the order being passed today.

In above terms, appeal is disposed of.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 17-10-2023 18:35:54