Rajaram Dead Thr. Lr. Hari Singh vs The Union Of India
2024 Latest Caselaw 14101 MP

Madhya Pradesh High Court

Rajaram Dead Thr. Lr. Hari Singh vs The Union Of India on 14 May, 2024

                         1

 IN THE HIGH COURT OF MADHYA PRADESH
             AT GWALIOR
                BEFORE
       HON'BLE SHRI JUSTICE VINAY SARAF
              ON THE 14th OF MAY, 2024
            MISC. PETITION No. 3326 of 2022

BETWEEN:-
RAJARAM DEAD THR. LR. HARI SINGH
S/O LATE SHRI RAJARAM, AGED
ABOUT 38 YEARS, KALPI BRIDGE
COLONY MORAR (MADHYA PRADESH)
                                         .....PETITIONER
(SHRI ANAND BHARDWAJ - ADVOCATE)
AND
1. THE UNION OF INDIA SECRETARY
  GENERAL     DEPARTMENT        OF
  DEFENSE (DELHI)

2. PRINCIPAL    DEPUTY    DIRECTOR
   LAND HEAD QUARTER CENTRAL
   CONDS LUCKNOW (UTTAR PRADESH)
3. DEFENSE       STATE      OFFICER
   JABALPUR JABALPUR (MADHYA
   PRADESH)
4. COMMANDANT       STATION   HEAD
   QUARTER     GWALIOR     (MADHYA
   PRADESH)
5. STATE     OF    M.P.    THROUGH
  COLLECTOR DISTRICT GWALIOR
  GWALIOR (MADHYA PRADESH)
6. SMT. KASHI BAI W/O LATE SHRI
   GYASIRAM KALPI BRIDGE COLONY
   MORAR     GWALIOR     (MADHYA
   PRADESH)
7. RAMESH S/O LATE SHRI GYASIRAM
   KALPI BRIDGE COLONY MORAR
   GWALIOR (MADHYA PRADESH)
                          2

8. UDAYBHAN     S/O   LATE    SHRI
   GYASIRAM      KALPI     BRIDGE
   COLONY     MORAR      GWALIOR
   (MADHYA PRADESH)
9. NARAYAN BAI D/O LATE SHRI
   GYASIRAM KALPI BRIDGE COLONY
   MORAR    GWALIOR      (MADHYA
   PRADESH)
10. JAMNA BAI D/O LATE SHRI
    GYASIRAM      KALPI     BRIDGE
    COLONY    MORAR       GWALIOR
    (MADHYA PRADESH)
11. GOVIND S/O SHRI GYASIRAM
    THROUGH LRS. (I) KALAWATI BAI
    W/O LATE SHRI GOVIND KALPI
    BRIDGE     COLONY       MORAR
    GWALIOR (MADHYA PRADESH)
12. GOVIN   S/O   SHRI  GYASIRAM
    THROUGH LRS. (II) DARSHANLAL
    S/O LATE SHRI GOVIND KALPI
    BRIDGE      COLONY     MORAR
    GWALIOR (MADHYA PRADESH)
13. GOVIN  S/O  SHRI   GYASIRAM
    THROUGH LRS. (III) GORABAI
    BATHAM D/O LATE SHRI GOVIND
    KALPI BRIDGE COLONY MORAR
    GWALIOR (MADHYA PRADESH)
14. SMT. ANJU BATHAM W/O LATE
    SHRI AJAY KUMAR D/O SHRI
    RAJARAM, AGED ABOUT 40 YEARS,
    MAHADIK KI GOTH KAMPOO
    LASHKAR GWALIOR     (MADHYA
    PRADESH)
15. SMT. MANJU BATHAM W/O SHRI
    RAJ KUMAR BATHAM CHHATRI
    ROAD     SHIVPURI    (MADHYA
    PRADESH)
                                     .....RESPONDENTS
                                 3

( SHRI PRAVEEN KUMAR NEWASKAR - DEPUTY SOLICITOR
GENERAL FOR RESPONDENT NO.1/UNION OF INDIA.
SHRI VIVEK KHEDKAR - ADVOCATE FOR RESPONDENT [R-4].
SHRI NEELESH TOMAR - GOVT. ADVOCATE FOR RESPONDENT
NO.5)


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

1. By the present petition, the petitioner has assailed the order dated 23.03.2022 passed in RCS No.15A/10 by 11 th Civil Judge, Senior Division, Gwalior, whereby the application moved under Section 151of CPC by the plaintiff/petitioner was rejected by the trial Court on the ground that the matter has been remanded by the appellate court with a direction to permit the parties to adduce the evidence in respect of the documents filed before the appellate court along with the application filed under Order XLI Rule 27 of CPC and, therefore, the permission cannot be granted to exhibit a document which was already on record and the petitioner omitted to exhibit the same at the time of original proceedings.

2. Learned counsel for the petitioner submits that the document was filed by the petitioner and an application was moved under Section 65 of the Evidence Act seeking permission to adduce the secondary evidence in respect of that document as the original was lost. That application was allowed by order dated 16.07.2012 but inadvertently the document was not exhibited before the trial Court and now when the matter has been remanded to the trial Court to decide afresh by the appellate court the petitioner be permitted to

exhibit the document which is already available on record and in respect of which the permission has already been granted. He prays for issuance of necessary direction and setting aside the impugned order.

3. Per contra, the learned counsel appearing on behalf of respondent No.1/Union of India and learned counsel appearing on behalf of respondents No.2 to 4 and the learned Govt. Advocate appearing on behalf of respondent No.5 submit that with the specific direction the case was remanded by the appellate court and, therefore, the trial Court cannot travel beyond the scope. The counsels submit that the appellate court has remanded the matter for recording the evidence in respect of the documents filed along with application under Order XLI Rule 27 of CPC, and therefore, the trial Court is justified in declining to permit the petitioner to exhibit the document which was already on record. Learned counsel relied upon the judgment of Apex Court delivered in the matter of Shivshankara & Anr. vs. H.P. Vedavyasa Char reported in AIR 2023 SC 1780, wherein the Apex Court held that if the matter is remanded with certain observations the trial Court is under obligation to comply with the order of remand and cannot not act contrary to the order of remand. An order of remand has to be followed in its true spirit. He relied on para 7 of the judgment which reads as under:-

"7. Before proceeding with the matter further, we think it appropriate to consider the impact of such an order of remand as it would certainly deconvolute consideration of this appeal. There can be no doubt with respect to the settled position that the Court to

which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit. True that in this case the High Court, originally, as per judgment dated 29.10.2007 remanded the matter to the trial Court for fresh disposal and while doing so, it also directed the trial Court to afford opportunity to the defendants to lead evidence. But then, the same was modified by this Court and as per the judgment in C.A. No.5201 of 2009 the matter was remanded to the High Court for fresh disposal of RFA No.1996 of 2007 and the further direction to the trial Court was only to record the evidence as directed by the High Court and to forward it along with report to enable the High Court to dispose of the appeal taking into account the additionally recorded evidence of the defendants as well. Thus, it is evident that the direction to the trial Court for recording the evidence and submitting it along with report will not efface the evidence already on record or will not be having the effect of setting aside of the judgment and decree passed by the trial Court and indisputably, its purpose was only to enable the High Court to consider RFA No.1996 of 2007 carrying challenge against the judgment and decree of the trial Court in O.S. No.6456 of 1993, not only based on the evidence already considered by the trial Court but also based on the additionally recorded evidence of the defendants based on its judgment dated 29.10.2007."

4. On the strength of the observations of the Apex Court, learned counsels for the respondents submit that it is settled position of law that trial Court cannot permit any of the party to submit any new document or adduce evidence which was not permitted by the appellate Court and the purpose for remand was only to enable the parties to adduce the evidence in respect of the

documents filed before the appellate Court.

5. After considering the arguments advanced by the parties and after perusal of the order of remand, it appears that the appellate court has set aside the judgment and decree dated 25.02.2013 and remanded the matter back to the trial Court with a direction to permit the parties to adduce the evidence in respect of the documents filed before the appellate court but at the same time the appellate court has not restricted the trial court not to permit any of the party to adduce the evidence and exhibit any document which was already on record. By the remand order the permission was granted with respect to the documents filed before the appellate Court and once the judgment and decree is set aside the documents already available on record can be exhibited and there is no dispute in that regard. It cannot be said that by permitting the petitioner to exhibit the document in respect of which permission was already granted by the trial Court by order dated 16.07.2012 the trial Court will act contrary to the order of remand. The remand order may be considered as a remand under Order 41 Rule 23A of CPC and, therefore, the petitioner can adduce the evidence in respect of the document which is already available on record and in respect of the documents those were filed before the appellate Court along with the application.

6. With the aforesaid, the impugned order dated 23.03.2022 is hereby set aside. Application moved on behalf of the petitioner under Section 151 of CPC is allowed. The petitioner is permitted to exhibit the document in accordance with law and lead the

evidence and the respondents/defendants will have full opportunity to raise the legal objections regarding admissibility of the documents and cross-examine the witness.

7. With the aforesaid, present petition is disposed of.

(VINAY SARAF) JUDGE

van

VANDANA VERMA 2024.05.15 10:05:04 +05'30'