Madhya Pradesh High Court
Smt. Sushila Devi vs Kashiram (Dead) Thr. Lrs Naresh Ssharma on 29 February, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 29 th OF FEBRUARY, 2024
MISCELLANEOUS APPEAL No. 3300 of 2021
BETWEEN:-
1. SMT. SUSHILA DEVI W/O SHRI GAURI SHANKAR
SHARMA, AGED ABOUT 79 YEARS, R/O VILLAGE
SALWAI PARGANA DABRA DISTRICT GWALIOR
(MADHYA PRADESH)
2. JAGDISH PRASAD S/O PREMNARAYAN SHARMA,
AGED ABOUT 59 YEARS, OCCUPATION- JOB R/O
CHITRAGUPT GANJ, SUBE KI GOTH, LASHKAR
GWALIOR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ABHISHEK SINGH BHADORIYA- ADVOCATE)
AND
1. KASHIRAM (DEAD) THR. LRS:
A) NARESH SSHARMA S/O N.A, AGED ABOUT 55
YEARS, OCCUPATION: AGRICULTURE,
(B). KAUSHAL SHARMA AGE- 50 YEARS,
OCCUPATION AGRICULTURE
BOTH R/O MAHAVIRPURA, DABRA DISTRICT
GWALIOR (MADHYA PRADESH)
(C). SHAKUNTALA SHARMA W/O OM PRAKASH
SHARMA, AGED ABOUT 61 YEARS, NEAR NEHRU
PETROL PUMP, LASHKAR GWALIOR (MADHYA
PRADESH)
(D). SUMAN SHARMA W/O LATE RAJKUMAR
SHARMA, AGED ABOUT 57 YEARS, R/O NEAR
BARADARI CHAURAHA, MURAR, GWALIOR
(MADHYA PRADESH)
(E). ARCHANA SHARMA W/O DAMODAR
SHARMA, AGED ABOUT 43 YEARS, R/O
MAHARAJPURA, BEHIND ROAD, GWALIOR
(MADHYA PRADESH)
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 04-03-2024
04:46:14 PM
2
(F). MANJU SHARMA W/O MAHENDRA SHARMA,
AGED ABOUT 40 YEARS, MAHAVIRPURA, DABRA,
GWALIOR (MADHYA PRADESH)
(G). RANI SHARMA W/O RAJU SHARMA, AGED
ABOUT 37 YEARS, R/O VILLAGE ANTRI, TEHSIL
CHINOR, GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YASH SHARMA PROXY COUNSEL ON BEHALF OF SHRI
PRASHANT SHARMA- ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This miscellaneous appeal has been preferred by the appellants/plaintiffs
against the order dated 04/12/2021 passed by the IIIrd District Judge Dabra,
District Gwalior in Civil Appeal No.200021/2016 and 200017/2016 whereby the
matter has been remanded back to the Trial Court with the directions of recording
the evidence of both the parties on certain issues.
The plaintiffs/appellants filed a suit for eviction and for the recovery of rent
against the defendants under the provisions of M.P. Accommodation Act.
Alternatively, relief of possession was also sought on the basis of title. The
defendants in their written statement denied the relationship of landlord-tenant
between the parties and alleged their possession over the suit premises on the
ground of oral agreement to sale entered into by the owner plaintiff No.2 and
deceased defendant Kashiram.
After framing of issues, both the parties tendered their evidence. After
closing of evidence of both the parties, the Trial Court on the application filed by
the plaintiffs under Order 14 Rule 5 of C.P.C. amended the issue No.5 and
framed additional issue Nos.7, 8 and 9 and passed the judgment after hearing the
parties. The Trial Court did not find the existence of landlord-tenant relationship
but partly decreed the suit on the basis of title against this judgment and decree
dated 08/08/2016 thereafter, both the parties preferred appeal. Learned Appellate
Court heard the arguments and passed the order of remand directing the Trial
Court to afford an opportunity to both the parties to lead evidence on the issue
No.5, 7, 8 and 9 and re-decide the matter.
It is submitted by the learned counsel for the appellants that the impugned
order is against the well settled principles of law. The learned Appellate Court has
not even looked into the facts of the case. Issue No.7 relates to a legal question
and is not subject to any evidence. Parties have already tendered their entire
evidence on all other issues. The learned Appellate Court has further erred in
setting aside the entire judgment without touching the findings given by the Trial
Court. Hence, prayer has been made to set aside the impugned order and to direct
the appellate Court to decide the appeal on merits.
The learned counsel on behalf of the respondents have supported the order
of remand.
It is an admitted fact that no party has amended or added his pleadings after
framing of issues and the pleadings in respect of additional issues are already
contained in their respective plaint and written statements. From the perusal of the
record of the Trial Court, it is apparent that the parties have tendered their entire
evidence considering their pleadings or in the light of their pleadings. The issue
Nos.5 and 7 are directly related to each other and on the facts relating to these
issues, parties have already led their detailed evidence. In such a situation, the
addition of issues was a mere formality. The evidence regarding the additional
issues is already on record and no additional evidence in this regard is required. It
is also worth mentioning that issue Nos.8 and 9 have been decided by the Trial
Court against the plaintiffs and there is no prayer made by the plaintiffs to remand
the matter.
Thus, in the present case, undisputedly the pleadings and evidence of both
the sides are available on issue Nos.5, 7, 8 and 9. Hence, the appellate Court
should have decided the appeal on merits. But instead of deciding the same, it has
remanded the case in toto. It is settled law that where evidence on record is
sufficient, the appellate Court should determine the case finally. It is not a healthy
practice to remand a case to the Trial Court unless it is necessary to do so as it
makes the parties to wait for final decision of their case for a period which is
avoidable.
In view of the above, the impugned order of the appellate court is not
sustainable and deserves to be set aside.
Consequently, this appeal is allowed and the impugned order of the
appellate Court is set aside and the appellate Court is directed to decide the appeal
on merits.
Parties are directed to remain personally present in the concerned Appellate
Court on 25/04/2024.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
Pj'S/-
