Madhya Pradesh High Court
Smt. Anita vs Abdul Jalil on 3 November, 2025
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 3 rd OF NOVEMBER, 2025
MISC. APPEAL No. 4810 of 2022
SMT. ANITA
Versus
ABDUL JALIL AND OTHERS
Appearance:
Shri N.K. Gutpa- Senior Advocate assisted by Shri Shatru Daman
Singh Bhadouriyia- Advocate for appellant.
Shri Ajay Bhargava- Advocate for respondent No.1.
Shri Sanjay Singh Kushwaha- Govt. Advocate for respondent No.2-
State.
ORDER
This Miscellaneous Appeal under Order 43 Rule 1(U) of the Code of
Civil Procedure, 1908 has been filed by the appellant- defendant taking
exception to the order dated 30.09.2022 passed by the Court of Second
District Judge, Karera, District Shivpuri (hereinafter referred to as "the First
Appellate Court") in Regular Civil Appeal No.17 of 2022, whereby the First
Appellate Court set aside the judgment and decree dated 30.03.2022 passed
by the Court of First Civil Judge, Class-II, Karera, District Shivpuri
(hereinafter referred to as "the Trial Court") in Civil Suit No. 69-A of 2018,
and remanded the matter back to the Trial Court for fresh adjudication.
2. Brief facts giving rise to the present appeal are that the respondent
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No.1/plaintiff filed a civil suit for declaration of title and permanent
injunction pleading that he is the owner of the land bearing survey no.
1813/2832 min 4, ad-measuring 25x25 sq. ft. (i.e., 625 sq. ft.), and the
boundaries of the said property were also described in the plaint. It was
further pleaded that the defendant has no right, title, or interest over the suit
property, yet is attempting to interfere in his possession, and therefore, the
relief of permanent injunction was sought.
3. The appellant/defendant filed a written statement denying the plaint
allegations, contending that the boundaries mentioned in the plaint are
incorrect, and the plaintiff is neither the owner nor in possession of the suit
land, which in fact belongs to and is in possession of the defendant.
4. Upon framing issues and recording evidence of both sides, the
learned Trial Court, after considering the evidence, dismissed the suit on
merits by judgment and decree dated 30.03.2022. Aggrieved by the said
judgment, the plaintiff preferred a first appeal under Section 96 CPC, which
was allowed by the learned First Appellate Court vide order dated
30.09.2022, setting aside the judgment and decree passed by the Trial Court
and remanding the matter for fresh trial. Hence, the present appeal.
5. Learned Senior Counsel appearing for the appellant contended that
the order of remand passed by the First Appellate Court is contrary to the
provisions of Order 41 Rule 23A CPC. The findings of the Trial Court on
merits have neither been set aside nor reversed by the First Appellate Court,
nor has it been held that the evidence on record was insufficient to adjudicate
the matter. Without satisfying these mandatory preconditions, the Appellate
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Court was not competent to pass an order of remand.
6. It is further submitted that the Appellate Court has not recorded any
finding indicating the necessity of a retrial or the purpose thereof. Both
essential conditions of Rule 23A--(i) setting aside the finding of the Trial
Court, and (ii) forming an opinion that retrial is necessary--are absent in the
impugned order. Hence, the order of remand is wholly unsustainable in law.
7. It is argued that the First Appellate Court is vested with all powers
of the Trial Court and ought to have decided the appeal on merits upon re-
appreciation of the evidence available on record. However, instead of doing
so, it passed a mechanical order of remand. The appellant further submits that
the observations made in paras 28 to 30 of the impugned judgment reveal
that the Appellate Court has merely referred to the documents filed by the
plaintiff without analyzing the evidence in proper perspective.
8. It is also urged that the allowance of the plaintiff's application under
Order 41 Rule 27 CPC by the Appellate Court was unjustified. The
documents sought to be produced as additional evidence were neither new
nor unavailable at the trial stage and could have been produced earlier with
due diligence. The First Appellate Court erred in allowing such application
and remanding the matter, which amounts to granting the plaintiff a "second
innings" to fill the lacuna in his evidence.
9. Reliance is placed on the judgments of the Hon'ble Supreme Court
in Municipal Corporation, Hyderabad v. Sunder Singh [(2008) 8 SCC 485],
and decisions of this Court in Harishankar Vaishya v. Mandir Shri Jankri
Mandir Trust (Misc. Appeal No. 6381/2023 decided on 11.09.2025), and
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Shantilal (Dead) through LRs and Another v. Ramesh Chandra and Anothe r
(Misc. Appeal No. 2919/2019 decided on 18.08.2025), to contend that an
appellate court cannot remand a case unless it reverses the finding of the trial
court and records specific reasons for retrial.
1 0 . Per contra, learned counsel for the respondent No.1/plaintiff
supported the impugned order and submitted that the First Appellate Court,
in the interest of justice, rightly exercised its discretion under Order 41 Rules
23A and 27 CPC to ensure a fair trial. It is urged that certain documents were
crucial for determining ownership and possession, and the same could not be
effectively considered at the trial stage. The order of remand was therefore
necessary to allow proper adjudication of the real dispute between the
parties. No illegality or perversity exists in the impugned order warranting
interference by this Court. Hence, prayed for dismissal of this appeal.
11. Heard learned counsel for the parties and perused the record.
12. On perusal of the impugned order, it is apparent that the First
Appellate Court in paragraphs 28 to 31 discussed the documents exhibited
by the plaintiff, namely Ex.P-6 to Ex.P-13, which included certain
applications, reports, and orders issued by the Sub-Divisional Officer. The
Appellate Court observed that these documents were exhibited without
proper consideration or reasoning by the Trial Court. However, despite these
observations, the Appellate Court neither reversed the findings of the Trial
Court nor recorded any specific opinion that a retrial was necessary. The
Trial Court, on the other hand, had elaborately discussed the evidence. In
paragraph 13 of its judgment, it analyzed the dispute relating to the adjoining
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plots and, upon comparison of sale deeds and Khasra entries (Ex.P-1 to
Ex.P-5 and Ex.D-2), held that the plaintiff failed to establish ownership or
possession over the disputed property.
13. Under Order 41 Rule 27 CPC, additional evidence can be
permitted only when the appellate court finds that such evidence is necessary
for pronouncing judgment or that the party, despite due diligence, could not
produce it earlier. The documents in question were admittedly within the
plaintiff's knowledge and could have been produced during trial. Hence, the
allowance of the application under Order 41 Rule 27 CPC was legally
unsustainable.
14. Likewise, as per settled principles, the scope of remand under
Order 41 Rules 23 and 23A CPC is limited. A remand can be ordered only
when the appellate court reverses the decree of the trial court and deems it
necessary to conduct a retrial. In the present case, both these essential
conditions are absent. Therefore, the order of remand passed by the First
Appellate Court amounts to an erroneous exercise of jurisdiction.
15. Reference may be made to the decision of the Supreme Court in
Municipal Corporation, Hyderabad (supra) , wherein it was held that a
remand cannot be ordered casually or routinely unless the appellate court
records specific findings as required under Order 41 Rule 23A CPC. Similar
views were expressed by this Court in Harishankar Vaishya (supra) , and
Shantilal (Dead) through LRs (supra).
16. In view of the foregoing discussion, this Court finds that the First
Appellate Court erred in exercising its jurisdiction under Order 41 Rule 23A
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CPC and in allowing the application under Order 41 Rule 27 CPC. The
impugned order dated 30.09.2022 passed by the First Appellate Court is
accordingly set aside. Both parties are directed to appear before the First
Appellate Court on 13.11.2025, whereupon the First Appellate Court shall
decide the appeal on its own merits based on the evidence available on
record, after affording due opportunity of hearing to both parties.
17. The Miscellaneous Appeal stands allowed in the aforesaid terms.
No order as to costs.
(HIRDESH)
JUDGE
MKB
