Rahil vs Ayyub on 2 December, 2025

          NEUTRAL CITATION NO. 2025:MPHC-IND:27956




                                                                   1                                     MA-3310-2025
                              IN      THE       HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                         BEFORE
                                       HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
                                                    MISC. APPEAL No. 3310 of 2025
                                                          RAHIL AND OTHERS
                                                                Versus
                                                          AYYUB AND OTHERS
                           Appearance:
                                   Shri Yash Pal Rathore, learned counsel for the appellants.
                                   Shri Nilesh Manore, learned counsel for respondent No.1.

                                                                       ORDER

                                   Heard on                  :            23.09.2025
                                   Pronounced on             :            02.12.2025.

------------------------------------------------------------------------------------------ This appeal has been filed by the appellants/defendants under Order XLIII Rule 1 (u) of the Code of Civil Procedure, 1908 against the judgment dated 10.03.2025 passed by Additional District Judge Barwani, District Barwani in Regular Civil Appeal No.60/2023, whereby the matter was remanded to the file of the trial Court for carrying out an amendment in the

plaint pursuant to an application filed under Order VI Rule 17 of the CPC at the appellate stage.

2. Short facts of the case are that the plaintiff/respondent No.1 filed a suit for declaration based on a will along with a prayer for permanent injunction in respect of the property situated in Survey No.388/1 admeasuring 2.671 hectares out of total area of 3.076 hectares in Village

NEUTRAL CITATION NO. 2025:MPHC-IND:27956

2 MA-3310-2025 Mohipura as well as property situated in Survey No.291/1 admeasuring 0.053 hectares in Village Mandwara.

2.1 It was averred in the plaint that the plaintiff's father Imam Baksh was residing with him and prior to his death, the said Musamad Imam Baksh

executed a will bequeathing 1/3rd of his property in favour of the plaintiff. The will was executed on 20.11.2020 and the registration certificate in respect thereof was issued on 23.11.2020. Based on the said will, a mutation order was passed in favour of the plaintiff by the concerned Tehsildar, which was subsequently affirmed by the Sub-Divisional Officer, 2.2 However, in Appeal No.335/2021-22 vide order dated 07.06.2022 the order of mutation in favour of the plaintiff/respondent No.1 was reversed,

which gave rise to the cause of action for filing civil suit before the trial Court.

3. Learned trial Court after considering the respective pleadings of the parties, framed as many as five issues in the matter. Out of these, issue Nos.3 to 5 pertained to valuation, limitation, relief and costs. The substantive issue No.1 was related to the title and possession of the suit property while issue No.2 concerned the relief of permanent injunction.

3.1 Both of these substantive issues were decided against the plaintiff and in favour of present appellants/defendants vide judgment and decree dated 30.09.2023.

3.2 Aggrieved by the said judgment and decree, plaintiff / respondent No.1 filed RCA No.60/2023 before the appellate Court. During the pendency of the said appeal, an application was filed by the plaintiff/respondent No.1

NEUTRAL CITATION NO. 2025:MPHC-IND:27956

3 MA-3310-2025 under Order VI Rule 17 of the CPC seeking amendment of the plaint.

3.3 Learned first appellate Court in para 10 of the impugned order straightaway adverted to the said application for amendment filed by the plaintiff / respondent No.1 and without examining the merits of the case, remanded the matter to the trial Court. It directed the trial Court to carry out the amendment in the plaint and also recorded that any consequential amendment, if sought, may be permitted. The trial Court was further directed to allow the parties to lead evidence, if so desired, and thereafter, to adjudicate the matter afresh on merits.

3.4 This remand as directed by the learned first appellate Court vide judgment dated 10.03.2025 has been challenged by the defendants / appellants before this Court.

4. Learned counsel for the appellants submits that the procedure adopted by the learned appellate Court is contrary to the settled position of law. He further submits that the correct procedure would have been to first examine the merits of the case and test the findings of the trial Court on the basis of the evidence already available on record. Only after recording specific findings regarding the sustainability of the trial Court's judgment, could the application filed under Order VI Rule 17 of the CPC at the appellate stage have been considered. However, the first appellate Court straightaway considered the application for amendment and without adverting to the merits of the case, remanded the matter to the file of the learned trial Court for carrying out the amendment, an approach that is not

sustainable in law.

NEUTRAL CITATION NO. 2025:MPHC-IND:27956

4 MA-3310-2025 4.1 He further argued that the original suit was filed for the relief of declaration based on a will along with a consequential relief of permanent injunction. The said suit was dismissed by the trial Court. Now, at the appellate stage, the respondents have filed an application under Order VI Rule 17 of the CPC for amendment in the plaint by adding a relief of partition. He submits that such an amendment changes the entire nature and character of the original suit. A suit for declaration and permanent injunction would thereby be converted into a suit for partition, which requires a different factual foundation and evidence. Therefore, permitting such an amendment at the appellate stage after the dismissal of the suit by the trial Court vide judgment and decree dated 10.03.2025 is not permissible in law.

5. On the other hand, learned counsel for the respondent supports the findings of the first appellate Court by contending that under the

Mohammedan law, a will can be upheld to the extent of 1/3 rd of the deceased's property. Therefore, even if the will is not acceptable with respect

to the entire suit property, it can still be considered valid for 1/3 rd thereof. Hence, the remand order passed by the first appellate Court is justified.

5.1 He further submits by referring to para 7 of the impugned order that the will was found to be proved as specific findings to that effect have been recorded by the first appellate Court. Thus, the remand is proper, as it was made after dealing with and analyzing the findings of the trial Court.

6. In rejoinder submissions, learned counsel for the appellants submits that the learned trial Court had dismissed the suit by disbelieving the will. However, a perusal of the impugned judgment of the first appellate Court

NEUTRAL CITATION NO. 2025:MPHC-IND:27956

5 MA-3310-2025 reveals that the findings of the learned trial Court in this regard have not been specifically reversed.

7. Heard learned counsel for the respective parties and perused the record.

8. From perusal of the impugned judgment, it is seen that the contention of the learned counsel for respondent No.1 that the appellate Court has dealt with the findings regarding the will in para 7 of the impugned judgment is not correct. In fact, para 7 merely records the submissions of the appellants i.e. the grounds on which the appeal has been filed.

8.1 The conclusions of the appellate Court begin from para 10, which opens with the observations that application filed under Order VI Rule 17 of the CPC is being decided first. Thereafter, from paras 11 to 16 the Appellate Court considered only the said application. Finally, in para 17, it concluded that it would be appropriate that the amendment be carried out before the trial Court and accordingly, the matter was remanded.

8.2 Thus, it is evident that the first appellate Court did not examine the merits of the original case. The findings recorded by the trial Court have not been considered, much less reversed, by the appellate Court, which is impermissible in law.

9. It is trite law that, for remand of a matter, it is essential that the first appellate Court first records its findings with respect to the conclusions drawn by the trial Court. In fact, Order XLI Rule 23-A of the CPC specifically provides that where the appellate Court reverses the decree in appeal and considers a re-trial necessary, it may remand the case to the trial

NEUTRAL CITATION NO. 2025:MPHC-IND:27956

6 MA-3310-2025 Court.

10. While remanding the case, the Court may frame additional issues or if sufficient evidence is available on record may itself determine the case finally by framing the issues necessary for adjudication as per its opinion.

11. In the present case, there is no reversal of findings by the appellate Court while remanding the matter to the trial Court. The appellate court without considering or even touching upon the merits of the case and without holding that for what reasons the findings of the trial court are not proper, straight away considered the application for amendment in plaint and while allowing the same remanded the matter back to the trial court. Hence, in the considered view of this Court, the impugned judgment and decree fails the test of a valid remand as laid down by the Hon'ble Apex Court and under the provisions of Order XLI of the CPC

12. Consequently, the present appeal is allowed. The impugned judgment and decree dated 10.03.2025 are hereby set aside and the matter is restored to the file of the first appellate Court for adjudication on its own merits based on the evidence available on record.

Certified copy as per rules.

(PAVAN KUMAR DWIVEDI) JUDGE

Anushree