Madhya Pradesh High Court
Smt. Haliman Bi (Dead) Through Power Of ... vs Smt. Mamta Bai Ahirwar on 3 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 3 rd OF MAY, 2024
MISC. APPEAL No. 1878 of 2024
BETWEEN:-
SMT. HALIMAN BI (DEAD) THROUGH POWER OF
ATTORNEY HOLDER BARKAT ALI S/O ABDUL SHUKUR
KHAN, AGED ABOUT 54 YEARS, OCCUPATION:
THROUGH LEGAL HEIR BARKAT ALI S/O ABDUL
SHUKUR KHAN OCCUPATION BUSINESSMAN X 123
NABBE QUARTER VIJAY NAGAR TEHSIL AND DISTRICT
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI R.K. KESHWARWANI - ADVOCATE )
AND
SMT. MAMTA BAI AHIRWAR W/O LATE KISHORI LAL
AHIRWAR, AGED ABOUT 55 YEARS, OCCUPATION:
HOUSE WIFE HOUSE NO. 151 NEAR KACHNAR CITY
GATE VIJAY NAGAR TEHSIL AND DISTRICT JABALPUR
(MADHYA PRADESH)
.....RESPONDENT
(NONE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Learned counsel for the appellant has submitted that the plaintiff has filed
an eviction suit under Section 12(1)(a) and 12(1)(c)(e) of M.P. Accommodation
Control Act,1961 against the respondent.
2. The defendant/respondent appeared and had filed a written statement
and along with that she has also filed documents as Annexure-P/2 and after that,
the respondent did not appear before the Court hence, the trial Court proceeded
ex parte and the suit was decreed in favour of the plaintiff and decreed of
ejectment was passed.
3. Learned counsel for the appellant has submitted that being aggrieved
by the ex parte judgment, the respondent has preferred an application under
Order 9 Rule 13 of CPC and after that, she has withdrawn the application and
filed a regular appeal under Section 96 read with order 41 of CPC.
4. Before the First Appellate Court, she filed an application under Order
41 Rule 27 of CPC r/w Section 151 of CPC and in that the respondent has
submitted documents, which were already on record. The First Appellate Court
without going through the fact that those documents were already on record
allowed the application under Order 41 Rule 27of CPC and remanded the
matter which is against the law.
5. Learned counsel for the appellant has also submitted that in the
judgment of Smt. Uma Shetty and Sri Venkataramana Shetty vs. N.V.
Rajachari, Smt. Saraswathi and Smt. Uma reported in (2010) 3 AIR ( Kar)
766, that arbitrary remand order should be avoided and also relied on the
judgement of Manbasiya and Ors. vs. Muni and Ors. passed by the Chhatisgarh
High Court in MA No. 19/2017 dated 15-02-2019 by which the Chhatisgarh
High Court has held that the Appellate Court should himself framed the issue
and recorded the evidence of parties.
6. I have gone through the record.
7. Heard the learned counsel for the appellant.
8. The basic defence of the defendant as has been pleaded in her written
statement Annexure-P/2 in paragraph-1 of the additional reply that the original
owner of the house was Rukmani Bai and her husband has entered into an
agreement with her, as per the agreement to sale dated 15-04-2011, it was
agreed that the disputed house shall be sold to her husband for consideration
amount of Rs. 1,80,000/- and as a part of consideration Rs. 1,20,000/- was paid
to Rukmani Bai. The Rukmani Bai has put her husband in the possession of the
disputed house and due to sudden demise of her husband in July, 2011, the sale
deed could not be executed and she has also filed agreement to sale alongwith
written statement.
9. Before the First Appellate Court under Order 41 Rule 27, those
documents were again produced to be taken on record.
10. The First Appellate Court in paragraph-28 of its judgment has clearly
mentioned that the documents are already on record and after taking into
consideration the documents, the trial Court has held as under :-
"¼d½ fopkj.k U;k;ky; ekeys dks iqu% uacj ij dk;e djrs gq,
vihykFkhZ@izfroknh dh vksj ls izLrqr fd, x, fodz; vuqca/k i=
fnukad 15-04-11 tks iwoZ ls vfHkys[k ij gS] ds laca/k esa mHk;i{kksa dh
lk{; fof/k vuqlkj izLrqr fd;s tkus dk volj iznku dj izdj.k dk
fof/kuqlkj fujkdj.k djsaA ;g Hkh funsZf'kr fd;k tkrk gS fd ewy okn
ds nkSjku ys[kc) dh xbZ lk{; lHkh vioknksa ds v/khu jgrs gq,]
izfrizs{k.k ds ckn eqdnes ds nkSjku izLrqr lk{; ds :i esa i
¼[k½ bl U;k;ky; ds le{k mifLFkr i{k dks vkns'k 41 fu;e 26¼d½
lh-ih-lh- ds izdk'k esa v/khuLFk U;k;ky; ds le{k fnukad 12-02-24
dks mifLFkr jgus dk funsZ'k fn;k tkrk gSA"
11. Thus, in this case, the First Appellate Court has ordered the trial
Court to take evidence to prove the documents and opportunity of rebuttal has
been provided to the plaintiff/respondent. In my considered opinion, as per the
provision of Order 41 Rule 23-A of CPC, it is necessary that the evidence is
recorded and finding comes on the defence of defendant/respondent before the
court.
12. Thus, no infirmity is found in the impugned judgment. The judgment
cited by learned counsel for the appellant are not applicable in this case as the
facts in this case are different.
13. Hence, Miscellaneous Appeal cannot be entertained. It is dismissed.
14. With the copy of the order, the record of the First Appellate Court
be returned back. It is directed that the trial Court shall decide the suit as
expeditiously as possible and if possible within six months from the receipt of
the order of this court.
(DEVNARAYAN MISHRA)
JUDGE
PG
