Rudmal vs President Bhabholav Dugdh Samiti ...
2022 Latest Caselaw 1467 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 1721/2012

Rudmal Son of Heera, R/o Village Dang, Tehsil Kishangarh,
District Ajmer, Raj.
                                                          ----Appellant/plaintiff
                                   Versus

1 .President Bhabholav Dugdh Samiti, village bhabholav through
its president gopal son of harchand jat, resident of bhabholav,
presently president Shrawan Lal son of Nand Jat, resident of
bhabholav, tehsil kishangarh, district ajmer, Raj.

2. Sarpanch, Gram Panchayat Bhabholav, panchayat samiti Arai,
Tehsil Kishangarh, District Ajmer, Raj.

                                                                ----Respondents

Connected With S.B. Civil Miscellaneous Appeal No. 1722/2012 Bhanwar Lal son of chittar kumhar, resident of bhabolav, tehsil kishangarh, district ajmer, Raj.

----Appellant Versus

1 .President Bhabholav Dugdh Samiti, village bhabholav through its president gopal son of harchand jat, resident of bhabholav, presently president Shrawan Lal son of Nand Jat, resident of bhabholav, tehsil kishangarh, district ajmer, Raj.

2. Sarpanch, Gram Panchayat Bhabholav, panchayat samiti Arai, Tehsil Kishangarh, District Ajmer, Raj.

                                                                ----Respondents


For Appellant(s)         :     Mr. Ran Singh
For Respondent(s)        :     Mr. Sunit Awasthi through VC



         HON'BLE MR. JUSTICE PANKAJ BHANDARI

                                    Order

11/02/2022

1. Appellants have preferred these civil misc. appeals aggrieved

by judgment and order dated 17.04.2012 passed by Addl. District

Judge, Kishangarh, District Ajmer in Civil Appeal No.07/2012,

(2 of 3) [CMA-1721/2012]

whereby Appellate Court allowed the appeals preferred by the

respondent No.1 and set aside the judgment and decree dated

03.02.2012 passed by Civil Judicial Division Kishangarh and

remanded the case back to the court below permitting the

defendant/respondent No.1 to lead evidence with further direction

to summon the record from the Gram Panchayat and take

evidence of the Gram Panchayat also and decide the case after

hearing the parties.

2. It is contended by counsel for the appellants that respondent

No.1 was afforded ample opportunities by the Court below to lead

evidence, however, no evidence was produced on behalf of the

respondent No.1 and counsel for responded No.1 himself stated

before the Court that they do not want to lead evidence. It is also

contended that under the Code of Civil Procedure, 1908, the

Appellate Court cannot remand the case permitting a party to fill

up lacunae in his case.

3. Counsel for the responded No.1 contends that respondent

No.1 is a society and the presidents keep changing and for that

reason, they were unable to lead evidence. It is also contended

that the Appellate Court has only remanded the case and no

injustice would be caused to the appellants due to order of

remand passed by the Appellate Court.

4. I have considered the contentions and have perused the

order passed by the Appellate Court.

5. Appellate Court has come to the conclusion that the suit of

the plaintiff/appellants has been decreed because no evidence was

produced by the defendant/respondent No.1. I am of the

considered view that ample opportunities was given to the

defendant/respondent No.1 to lead evidence. Last opportunity was

(3 of 3) [CMA-1721/2012]

also given by the Court and ultimately, counsel for the

defendant/respondent No.1 stated before the Court that the

defendant/respondent No.1 does not want to lead evidence and

thereupon the Court closed the evidence of the

defendant/respondent No.1. I am also of the view that under the

Code of Civil Procedure, 1908, powers to remand the case cannot

be exercised by the Appellate Court to permit a party to fill up

lacunae, more particularly, when ample opportunities were given

to the respondent No.1 to lead his evidence. There was no

justification as to why the Appellate Court remanded the case

permitting the defendant/respondent No.1 to lead evidence and

directed the Court below to decide the case afresh.

6. Impugned order thus, cannot be sustained and the same is

set aside. Appellate Court is now directed to decide the case

afresh on the basis of the judgment and decree passed by the

Court below and the record available before it, on its own merit.

7. Civil Misc. Appeals are accordingly, allowed.

8. Stay application stands disposed.

9. A copy of this order be placed in connected file.

(PANKAJ BHANDARI),J

CHANDAN /26-27

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