Madhya Pradesh High Court
Takhat Singh vs Geetabai on 17 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 17 th OF APRIL, 2025
MISC. APPEAL No. 3641 of 2019
TAKHAT SINGH AND OTHERS
Versus
GEETABAI AND OTHERS
Appearance:
Shri P.S.Kaurav- Advocate for the appellants.
Shri Rahul Yadav- Advocate for the respondent no.1.
ORDER
The appellants/defendants have filed this appeal under Order 43 Rule 1(u)
of the Code of Civil Procedure challenging the judgment dated 30.04.2019 passed
by 3 rd Additional District Judge, Ganjbasoda, District Vidisha (M.P.) in R.C.A.
No.31/2017 whereby, learned Appellate Court after setting aside the judgment and
decree passed by the Trial Court has remanded the suit for fresh decision.
[2]. The facts in short necessary for decision of this appeal are that plaintiff
- Geeta Bai claims to be the daughter of Pooran & Guddi Bai. She has claimed
1/4th share in the suit property being their daughter. Her claim is disputed by the
defendants denying the fact that plaintiff - Geeta is not the daughter of Pooran. It
is their case that before plaintiff's birth, Pooran Singh had expired and Guddai Bai
married to one Prakash and the plaintiff was born out of this wedlock. Learned
trial Court after taking oral as well as documentary evidence of both sides
dismissed the suit vide judgment and decree dated 10.03.2017. Being aggrieved,
the plaintiff filed an appeal which has been allowed by First Appellate Court and
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the matter has been remanded.
[3]. Challenging the judgment passed by Appellate Court, learned counsel
for the appellants submits that there is no finding recorded by the Appellate Court
as to whether retrial is considered necessary and, therefore, in absence of such
finding, the remand is not warranted.
[4]. On the other hand, learned counsel for the respondents supported the
impugned judgment and submitted that in view of the discussion of evidence made
by the Appellate Court in paragraphs 15 to 19, the remand of the matter to the trial
Court for fresh decision is justified. The provisions of Order 41 Rule 23 & 23-A
deals with the remand of the matter by the Appellate Court. Under Rule 23, when
a suit is decided upon preliminary issue, and if the Appellate Court reverses the
judgment of the Trial Court, the matter is to be remanded. Such a situation is not
existing in the instant case. Rule 23-A deals with power of Appellate Court to
remand a matter when retrial is considered necessary. However, from reading the
entire judgment, such a finding is not recorded by the Appellate Court that a
retrial is considered necessary. Further, Rule 24 of Order 41 specifically provides
that when the evidence on record is sufficient, the Appellate Court is required to
determine the case finally without remanding the matter to the Trial Court.
[5]. Considered the arguments and perused the record.
[6]. A bare reading of observations made by the Appellate Court in
paragraphs 15 to 19, it is gathered that the Appellate Court was of the view that
the Trial Court has not appreciated the oral and documentary evidence properly.
However, there is no finding that further evidence is required. If the Appellate
Court is not satisfied with the findings recorded by the Trial Court, it can hold
such finding to be perverse and record its own finding based upon the evidence
already available on record. In such a circumstances, the remand is not
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warranted. This has been so held by this Court in the case of Shivdayal Vs.
Meenabai and Ors. reported in 2014 (5) M.P.H.T. 306.
"5. In the facts and circumstances of the case, in the opinion of
this Court, First Appellate Court committed patent error of law,
while dealing with evidence brought on record discussed merits of
the issue as contained in Paragraphs 14 to 19 of the impugned
judgment, particularly, in the context of factum of execution of
''will'', dated 10-2-1999 and thereafter, chose to remand the case
without reversing findings of the Trial Court. As a matter of fact,
if First Appellate Court intended to remand the case to Trial Court
under Order XLI Rule 23-A, CPC, it was required to first reverse
the finding of Trial Court on issues and thereafter, upon
conclusion that retrial was necessary, the said jurisdiction could
have been invoked. That was not done. First Appellate Court in
all fairness ought to have decided the appeal on merits instead of
deciding the issue of ex parte judgment and decree against the
defendant/appellant from Paragraphs 8 to 13. Consequently,
having remanded the suit to Trial Court, in the facts and
circumstances of the case, First Appellate Court has improperly
and erroneously exercised jurisdiction under Section 96, CPC.
Hence, the impugned judgment and decree are set aside."
[7]. Thus, the directions issued by the Appellate Court are not found to be
in consonance with provisions of Order 41 Rule 23 & 23-A CPC.
[8]. Accordingly, the judgment dated 30.04.2019 passed by First Appellate
Court is set aside. The matter is remitted to the First Appellate Authority for
deciding the appeal on merits on the basis of the evidence already available on
record. The parties are directed to appear before the Appellate Court alongwith
Certified Copy of this order on 06.05.2025.
[9]. With the aforesaid observations, the appeal is allowed .
(ASHISH SHROTI)
JUDGE
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