Madhya Pradesh High Court
Smt. Reshma Sachdeva vs Smt. Sudha Gupta on 12 September, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:21670
1 FA-896-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 12th OF SEPTEMBER, 2025
FIRST APPEAL No. 896 of 2019
SMT. RESHMA SACHDEVA
Versus
SMT. SUDHA GUPTA AND OTHERS
Appearance:
Mr. Anil Kumar Mishra - Advocate for appellant.
Mr. Vinod Kumar Bhardwaj - Senior Advocate, assisted by Mr. Anand
Raghuvanshi - Advocate for respondents Nos. 1 to 4.
Mr. Sanjay Kumar Dwivedi - Advocate for respondent No. 5.
JUDGMENT
This first appeal under Section 96 of CPC has been filed against the
judgment and decree dated 25.02.2019 passed by XVI Additional District
Judge, Gwalior in RCSA No. 400011/2010.
2. By reiterating the allegations which were made by respondents
against Shri Anil Mishra on 24.07.2025, it is submitted by counsel for
respondents Nos. 1 to 4 that Shri Anil Mishra should not argue the case
because it is against the noble profession of advocacy, and relied upon the
judgments passed by Madras High Court in the case of Advocate Cuddalore;
Collector of South Arcot vs An Advocate , reported in 1958 CrLJ 1321 , and
Mary Lilian Hira Devi vs Kunwar Digbijai Singh, reported in 1917 AIR(PC)
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3. This Court has already dealt with this aspect in order dated
24.07.2025. Whether a lawyer is guilty of professional conduct or not is
within the exclusive domain of Bar Council. The Supreme Court in the case
of R. Muthukrishnan vs The Registrar General, High Court of Judicature at
Madras, reported in (2019) 16 SCC 407 has held that only competent
authority is the Bar Council. Under these circumstances, this Court had
restrained itself from proceeding further with the allegations made by
respondents Nos. 1 to 4. For the similar reason, this Court is not inclined to
entertain the similar objections which were reiterated by counsel for
respondents.
4. In the present case, suit was filed by respondents Nos. 1 to 4 for
eviction, claiming themselves to be the owners. However, appellant has
raised serious dispute with regard to ownership of respondents Nos. 1 to 4. It
is the case of appellant that Bahadur K. Marfatiya Charitable Trust is the
owner of property in dispute and not respondents Nos. 1 to 4/plaintiffs.
5. IA No. 6093/2025 has been filed by respondents No. 1 to
4/plaintiffs under Order 41 Rule 27 CPC along with certain documents. It
was pleaded that initially, Bahadur K. Marfatiya Charitable Trust filed an
application under Order 1 Rule 10 CPC for its impleadment, and the said
application was allowed by the trial court by order dated 25.07.2013, and
review was dismissed by order dated 22.01.2014. However, Writ Petition
No. 926/2014 was allowed by this Court by order dated 20.01.2017, and the
application filed by Bahadur K. Marfatiya Charitable Trust for its
impleadment under Order 1 Rule 10 CPC was dismissed. Thereafter,
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Bahadur K. Marfatiya Charitable Trust has filed Civil Suit No. 425-A/2019
in respect of the property in dispute. In that suit, Bahadur K. Marfatiya
Charitable Trust has claimed that it should be declared as the owner and in
possession of the property in dispute, and sale deeds dated 05.08.2008,
07.08.2008, and 14.08.2008 have also been challenged, and it has been
claimed that they should be declared as null and void. It has also been prayed
that the impugned judgment and decree dated 24.02.2019 be declared as null
and void, and it has also been prayed that disputed sale deeds, partition
deeds, and power of attorneys be declared as null and void, as well as
permanent injunction be issued agianst respondents Nos. 1 to 4 from
interfering with the peaceful possession of Bahadur K. Marfatiya Charitable
Trust and tenants inducted by it. It is submitted that respondents No. 1 to 4
have not only filed their written statement but have also filed their counter-
claim. It is the case of respondents Nos. 1 to 4 themselves that suit filed by
Bahadur K. Marfatiya Charitable Trust is still pending.
6. For the reasons mentioned in the application, IA No. 6093/2025 is
allowed, and documents filed by respondents Nos. 1 to 4 are taken on record.
7. Now, the only question for consideration is what course of action
should be adopted by this Court at this stage?
8. Order 41 Rule 28 CPC reads as under:
"28. Mode of taking additional evidence. Wherever additional evidence is
allowed to be produced, the Appellate Court may either take such
evidence, or direct the Court from whose decree the appeal is preferred, or
any other subordinate Court, to take such evidence and to send it when
taken to the Appellate Court."
Thus, this court has three options, i.e., (i) this Court may take evidence
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on its own, (ii) this Court may remand the matter, and (iii) direct the
subordinate court to take such evidence and send it when taken to the
Appellate Court.
9. Order 41 Rule 29 CPC provides that where additional evidence is
directed or allowed to be taken, the Appellate Court shall specify the points
in which the evidence is to be confined and record in its proceedings the
points so specified. According to respondents Nos. 1 to 4 themselves,
Bahadur K. Marfatiya Charitable Trust has filed a suit claiming itself to be
the owner of the property in dispute by virtue of a Will executed by Bahadur
K. Marfatiya, and it is also the case of respondents Nos. 1 to 4 that not only
respondents Nos. 1 to 4 have filed their written statement but have also filed
their counter-claim. Counter-claim is to be tried as a suit. In counter claim
also, it has been prayed by respondents Nos. 1 to 4 that the Will dated
02.04.1987, by which Bahadur K. Marfatiya Charitable Trust was
constituted, be declared null and void.
10. Under these circumstances, this Court is of considered opinion that
the question of title of respondents Nos. 1 to 4, and the question of title of
Bahadur K. Marfatiya Charitable Trust are involved in the present case, as
well as in Civil Suit No. 425-A/2019 filed by Bahadur K. Marfatiya
Charitable Trust. Therefore, this court cannot take additional evidence on its
own because it would amount to conducting a full-fledged trial of civil suit
filed by Bahadur K. Marfatiya Charitable Trust, as well as counter-claim
filed by respondents Nos. 1 to 4.
11. Under these circumstances, this court is left with no other option
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but to set aside the judgment and decree passed by the trial court in the
present case, and to remand this matter with a request to the Principal and
District Judge, Gwalior, to assign the present suit as well as Civil Suit No.
425-A/2019, filed by Bahadur K. Marfatiya Charitable Trust, to the same
court, so that both the suits can be tried analogously and can be decided by
two separate judgments to be passed on the same day.
12. Aforesaid analogy would also avoid the possibility of two
conflicting judgments. In case if the present appeal filed by tenant/appellant
is dismissed, then it would directly or indirectly uphold the ownership of
respondents Nos. 1 to 4, and if the suit filed by Bahadur K. Marfatiya
Charitable Trust is permitted to be decided separately, then there is also a
possibility that trial Court may uphold the Will dated 02.04.1987, which is
being relied upon by Bahadur K. Marfatiya Charitable Trust, and may
declare Bahadur K. Marfatiya Charitable Trust as owner. Therefore, viewing
from every angle, this Court is of considered opinion that remand of the
present case is in the interest of all the contesting parties.
1 3 . Accordingly, judgment and decree dated 25.02.2019 passed by
XVI Additional District Judge, Gwalior in RCSA 11/2010 is hereby set
aside, and RCSA No. 400011/2010 is remanded back.
14. The parties are permitted to amend their pleadings in the light of
suit filed by Bahadur K. Marfatiya Charitable Trust.
15. The Principal District and Sessions Judge, Gwalior, is requested to
assign RCSA No. 400011/2010 (present suit) and Civil Suit No. 425-A/2019,
filed by Bahadur K. Marfatiya Charitable Trust, to the same court so that
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both the suits can be decided analogously by the same Court by passing two
different judgments on the same day.
16. Since additional evidence has been taken on record, therefore, the
parties shall be free to lead their additional evidence in this case also.
17. Parties are directed to appear before the Principal District and
Sessions Judge, Gwalior, on 27.10.2025, for further action.
18. With aforesaid observations, present appeal is disposed of.
(G. S. AHLUWALIA)
JUDGE
AKS
