Madhya Pradesh High Court
Rajkumar @ Raju vs Vijay Jain on 13 February, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:3958
1 MA-2698-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
MISC. APPEAL No. 2698 of 2024
RAJKUMAR @ RAJU AND OTHERS
Versus
VIJAY JAIN AND OTHERS
Appearance:
Shri Nitin Phadke - advocate for the appellant.
Shri Bhuwan Gautam, learned counsel for the respondent [R-1].
Heard on :28.01.2025
Delivered On: 13.02.2025
ORDER
The appellants have filed the present Miscellaneous Appeal under Oder 43 Rule
1(U) of the CPC, 1908 being aggrieved by the remand order dated 29.02.2024 passed
by Principal District Judge, Dhar in RCA No.06/2022 thereby setting aside the
judgment and decree dated 13.05.2022 passed by Civil Judge, Senior Division, Dhar in
RCS No.A/1200079/2016.
2. Facts in brief is that the present appeal is arising out of the suit for eviction
filed by respondent no.1/plaintiff against the appellants and other defendants for
eviction, arrears of rent and possession in respect of House no.45 (new No.13) situated
at Ward No.15, Raghunathpura, Tilak Marg, District Dhar. The suit was contented by
the appellants by filing their written statements wherein the plaints were denied. The
learned Civil Judge, after framing the issues and recording the evidence, dismissed the
suit by judgment and decree dated 13.05.2022 hold that relations of landlord and tenant
were not established between the plaintiff and defendants. Against the said judgment
and decree dated 13.05.2022, the respondent has filed an appeal and vide the impugned
judgment, the leaned District Judge allowed and the same by remanding the matter
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back with a direction to learned Civil Judge to pass afresh judgment after taking the
evidence of respondents on record as well as after giving opportunity of hearing. Hence,
the present appeal.
3. Counsel for the appellants has submitted that in the present case, the learned
appellate Court has remanded the case back without following the due procedure. There
is no finding regarding first issue decided by the leaned trial Court wherein the learned
trial court has viewed that the tenancy has not been proved in favour of respondent.
Since, the first issue is not decided by learned appellate Court, there is no use of
remanding the matter back. If the first appellate Court is of the view that there should
be some additional issues required to be considered under the provisions of Order 41
Rule 23 of CPC, it is the duty of learned first appellate Court to frame such issue and
render them directly or remand the case in that regard. It is also submitted that the
learned first appellate Court should frame such additional issue and after recording the
findings can only remand the matter back.
4. On the other hand, counsel for the respondent though opposed the prayer, but
fairly admitted that before remanding the matter back to the trial Court, the learned first
appellate Court was required to give its finding regarding first issue and after framing
additional issues, if found appropriate, the matter can only be remanded.
5. I have heard the counsel for the parties and perused the record.
6. In view of the aforesaid submissions of counsel for the appellants as well as
counsel for respondents, this Court is of the view that the first appellate Court has
every powers to decide the matter even issues are not framed if the evidence is
available, otherwise, only after framing the additional issues, matter may be remitted
back by first appellate Court. Hence, in the considered opinion of this Court, the
remand order dated 29.02.2024 passed by Principal District Judge, Dhar in RCA
No.06/2022, is liable to be and is hereby set aside and the matter is remitted back to
learned appellate Court with a direction to decide the appeal afresh. If the leaned
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appellate Court feels that some additional issue(s) is/are required to be framed or
considered in the present case, can frame the same and pass afresh judgment in
accordance with law.
7 It is made clear, that this Court has not made any opinion on the merits of the
case and the learned appellate Court is at liberty to pass the judgment afresh without
being influenced with the findings of this Court.
8. With the aforesaid, the appeal stands allowed and disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
