Madhya Pradesh High Court
Anoopi Rawat vs Sethi on 13 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 13 th OF NOVEMBER, 2025
MISC. APPEAL No. 4423 of 2023
ANOOPI RAWAT
Versus
SETHI AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - learned Counsel for appellant- defendant
No.2.
Shri Amit Lahoti- learned Counsel for respondents No. 1- plaintiff No. 1 as
well as for respondent No.2- defendant No.1.
Shri Dileep Awasthi- learned Government Government Advocate for
respondent No.6/ State.
ORDER
The present miscellaneous appeal under Order XLIII Rule 1(u) of the Code
of Civil Procedure, 1908, has been preferred by the appellant-defendant No.2
assailing the order dated 28.06.2023 passed by the learned Principal District
Judge, Shivpuri (hereinafter referred to as "the Appellate Court") in Regular Civil
Appeal No.24-A of 2021, whereby the judgment and decree dated 31.08.2021
passed by the learned Third Civil Judge, Senior Division, Shivpuri (hereinafter
referred to as "the Trial Court") in Civil Suit No. 38-A/2013 were reversed and set
aside, and the matter was remanded for reconsideration.
2. The facts necessary for adjudication of the present appeal, in brief, are
that the original plaintiff- respondent No.1 instituted a civil suit seeking
declaration of title, permanent injunction, and for declaring the sale deed as null
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and void. It was pleaded that the property in dispute was originally owned by late
Shri Lalaram, son of Shri Malkhan Rawat. Late Lalaram executed a Will dated
28.01.2011 in favour of the plaintiff and defendant No.1. After his demise on
16.05.2011, both the plaintiff and defendant No.1 filed an application under
Sections 109 and 110 of the M.P. Land Revenue Code, which was allowed on
29.07.2011, and their names were mutated in equal shares in the revenue record.
3. It was further pleaded that defendant No.3, Hazarilal, the then Secretary
of Gram Panchayat Kiroli, misused his official position and got an order dated
07.08.2011 issued in favour of defendant No.1, contrary to the mutation order
passed by the Tehsildar. As a result, the name of defendant No.1 was entered in
the revenue record for the entire property. Thereafter, defendant No.1 executed a
sale deed dated 23.08.2011 in favour of the present appellant/defendant No.2. The
plaintiff contended that the said sale deed is void as it covers the entire property,
whereas, as per the will, both the plaintiff and defendant No.1 had equal rights.
The plaintiff also sought a declaration that the resolution of the Gram Panchayat
dated 17.08.2011 is null and void.
4. Defendant No.1 filed a written statement denying the plaint allegations.
Defendants No.2 and 3 filed a joint written statement, contending that late Lalaram
never executed any will in favour of the plaintiff and defendant No.1 and that the
will relied upon by the plaintiff is false and fabricated. It was further contended
that after the death of Lalaram, defendant No.1, being his sole legal heir,
succeeded to the entire property, which was subsequently purchased by the present
appellant/defendant No.2 for valid consideration. Accordingly, dismissal of the
suit was prayed for.
5. The learned Trial Court framed issues on 12.04.2012 and, after recording
evidence, decreed the civil suit on 18.04.2015 in favour of the plaintiff. Aggrieved
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thereby, the appellant preferred Civil Appeal No. 500032 of 2015, which was
allowed on 26.08.2019 by the Appellate Court and the matter was remanded to the
Trial Court for determination of additional issues. Upon remand, the Trial Court
again decreed the suit on 31.08.2021.
6. Dissatisfied with the said judgment, the appellant preferred Civil Appeal
No. 24-A/2021 before the Appellate Court, which, vide order dated 28.06.2023, set
aside the judgment and decree passed by the Trial Court and remanded the matter
with liberty to the parties to file additional documents. Hence, this appeal.
7. Learned counsel for the appellant submitted that the plaintiff failed to
produce or exhibit the Gram Panchayat resolution No.7, dated 17.08.2011, which
was sought to be declared null and void. In absence of such document, the Trial
Court could not have declared it invalid. It was contended that the Appellate Court
committed a jurisdictional error in granting liberty to the plaintiff to produce
documents and lead further evidence without there being any application under
Order XLI Rule 27 CPC or any cross appeal or objection. It was further urged that
the Appellate Court has not exercised its jurisdiction in accordance with Order
XLI Rules 23, 23-A, or 25 CPC, and such remand merely enables the plaintiff to
fill lacunae in his case, which is impermissible in law.
8. Learned counsel for the appellant placed reliance on the judgments of the
Hon'ble Supreme Court in Municipal Corporation, Hyderabad v. Sunder Singh ,
(2008) 8 SCC 485, and of this Court in Murari Lal v. Ram Kumar Ojha and
Another, 2015 (1) MPLJ 243, to contend that an Appellate Court cannot remand a
matter merely to permit a party to fill up lacunae or adduce further evidence unless
the requirements of Order XLI Rules 23, 23-A, or 25 CPC are satisfied.
9 . Per contra , Shri Amit Lahot, learned Counsel supported the impugned
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order, submitting that the remand was necessary for complete and effective
adjudication of the matter and to bring on record documents essential for
determining the real controversy between the parties.
10. Having heard learned counsel for the parties and perused the record, it is
evident that the Gram Panchayat resolution No.7 dated 17.08.2011, which forms
the basis of the plaintiff's prayer for declaration, was never produced or exhibited
before the Trial Court. The Appellate Court, while allowing the appeal, remanded
the matter permitting the plaintiff to file such documents without there being any
application under Order XLI Rule 27 CPC or any cross appeal or objection. Such a
direction, in effect, affords the plaintiff an opportunity to fill lacunae in his
evidence, which is not permissible under law.
11. The power of remand under the CPC is confined to the circumstances
contemplated in Order XLI Rules 23, 23-A, and 25. An Appellate Court can
remand a matter only when--(i) the suit was disposed of on a preliminary issue
(Rule 23); (ii) the decree is reversed and a retrial is deemed necessary (Rule 23-A);
or (iii) specific issues require determination by the Trial Court (Rule 25). In the
present case, none of these conditions are satisfied. Therefore, the remand order
passed by the Appellate Court is beyond its jurisdiction and cannot be sustained.
12. In Sunder Singh (supra) , the Hon'ble Supreme Court has held that a
remand cannot be directed to enable a party to adduce evidence which it failed to
produce earlier. Similarly, in Murari Lal (supra), it was observed that an Appellate
Court cannot remand a case merely to allow a party to fill up gaps in its evidence.
13. In view of the settled legal position and upon careful consideration of the
facts of the present case, this Court finds that the Appellate Court erred in
remanding the matter without satisfying the conditions prescribed under Order XLI
CPC. The impugned order, therefore, cannot be sustained.
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14. Accordingly, the appeal filed by the appellant-defendant No.2 is
allowed. The impugned order dated 28.06.2023 passed by the learned Principal
District Judge, Shivpuri in Regular Civil Appeal No. 24-A of 2021 is set aside .
The matter is remitted to the Appellate Court for fresh adjudication of the appeal
on merits, strictly in accordance with law, on the basis of the material already
available on record.
15. The miscellaneous appeal stands allowed in the aforesaid terms. No
order as to costs.
(HIRDESH)
JUDGE
MKB
