[Cites 2, Cited by 0]
Madhya Pradesh High Court
Ambalal vs Sumitra on 3 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:3442
1 MA-785-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 3 rd OF FEBRUARY, 2026
MISC. APPEAL No. 785 of 2026
AMBALAL AND OTHERS
Versus
SUMITRA
Appearance:
Shri Shashank Sharma - Advocate for the appellants.
ORDER
This Misc.Appeal has been preferred against the impugned order dated
25.11.2025, Annexure A-6 passed in RCA 24/2021 whereby the documents filed
on behalf of the plaintiff with the application under Order 41 Rule 27 of the CPC
has been taken on record and the case has been remanded back to the trial Court
by setting aside the judgment and decree dated 28.08.2021, Annexure A-4.
2. The brief facts of the case are that the plaintiff/respondent herein has
filed RCSA 06/2020 for relief of declaration, mutation, partition and possession.
As per relief clause of the plaint whereby 1/5th share has been claimed by the
plaintiff was dismissed after full trial i.e after recording of evidence of both the
parties and after affording opportunity of hearing. Against this judgment and
decree passed by the trial Court, an appeal as mentioned herein above has been
preferred wherein some documents were filed along with an application under
Order 41 Rule 27 of CPC. The arguments were heard and during writing
judgment, the application has been disposed off and documents were taken on
record and the case has been remitted back to the trial Court for de novo trial. The
appellants being aggrieved by the aforesaid order is in this appeal before this
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Court.
3. Counsel for the appellants submits that the documents which were
taken on record relate to prove the fact that property in dispute is ancestral
property and respondent has 1/5th share therein. In such a situation, the learned
trial Court should have not remanded the case by setting aside the trial court's
judgment and decree in toto and particular issue should have been framed as per
provisions contained in Order 41 Rule 23 of CPC. To buttress his submissions
despite inviting attention to the aforesaid provisions learned counsel has placed
reliance on the judgment dated 31.10.2022 of the Co-ordinate Bench of this Court
in the case of Omprakash Vs. Ashok and others M.A.No.2152/2021 . Inviting
attention to para 13 of the aforesaid judgment learned counsel submits that
wholesale remand to the trial Court after setting aside its judgment and decree was
wholly unwarranted in the factual matrix of the case. He assails the order passed
by the Court below as illegal and also eating out precious judicial time of the
Courts. On these contentions prays for allowing the appeal by setting aside the
impugned order with a direction to the Court below i.e. appellate Court for
framing particular issue based on the documents admitted while allowing the
application under Order 41 Rule 27 of the CPC and finding on that issue should
have been called from the trial Court after giving opportunity of leading evidence
on that issue by both the parties.
4. Heard and considered the submissions of the learned counsel for the
appellants and perused the record.
5. It is not in dispute that application under Order 41 Rule 27 has been
allowed wherein the Court below has found that those documents are relevant for
resolving the controversy in dispute in the aforesaid civil suit. In such a situation,
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throwing out the trial Court's judgment and decree in toto was not warranted. It
could have sub served the ends of justice, if the necessary issue was framed by the
trial Court and the learned appellate Court relating to the documents taken on
record and the same should have been sent to the trial Court for affording
opportunity of leading evidence and getting the finding on that issue.
6. In the light of the aforesaid, this Court is of the view that the learned
Court below has committed illegality in setting aside the impugned judgment and
decree of the trial Court and remanding back for de novo trial. Hence, the appeal
is allowed. The order of wholesale remand dated 25.11.2025 passed by the learned
Court below Annexure A-6 is hereby set aside with direction that the appellate
Court will frame appropriate issue in the light of the documents taken on record
while allowing the application under Order 41 Rule 27 of CPC and the record be
remitted back to the trial Court with a direction that both the parties will be
afforded opportunity of leading evidence on that issue and after giving finding on
that issue, the record with finding be remitted back to the appellate Court for
deciding the appeal afresh. Learned appellate Court will decide the appeal in
accordance with law taking into account findings on issue framed by appellate
Court along with earlier findings of trial Court judgment.
With the aforesaid the appeal is allowed and disposed off.
(BINOD KUMAR DWIVEDI)
JUDGE
RJ
