Rajasthan High Court - Jodhpur
Vinod Purohit vs Lrs Of Mool Chand Purohit ... on 20 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:37540]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 32/2014
Vinod Purohit, son of Shri Kishan Lal alias Devkishan Purohit, by
caste Pushkarna Brahmin, resident of Purohit Bhawan, Kallon ki
Gali, Jodhpur. At present 18/716, Chopasani Housing Board,
Jodhpur.
----Petitioner
Versus
1. Legal Representatives of late Mool Chand Purohit, son of late
Shri Amrit Lal Purohit, by caste Pushkarna Brahmin, resident of
Kallo ki Gali, Jodhpur.
1/1. Gopi Kishan Purohit, son of late Shri Mool Chand, Resident
of 4-Sa-13, Teesra Pulia, Chopasani Housing Board, Jodhpur.
1/2 Prem Kumar Purohit, son of late Shri Mool Chand, R/O
Purohit Bhawan, Kallon Ki Gali, Jodhpur.
1/3 Surendra Kumar Purohit, son of late Shri Mool Chand,
resident of in front of Sita Ramji Temple, Above Biwal Medical
Store, Kabutaron Ka Chowk, Jodhpur.
1/4 Prem Kumar Purohit, son of late Shri Mool Chand, resident of
Purohit Bhawan, Kallon ki Galli, Jodhpur.
----Respondent
For Petitioner(s) : Mr. Rajesh Parihar
For Respondent(s) : Mr. Babulal
HON'BLE MR. JUSTICE FARJAND ALI
Order
20/08/2025
1. By way of filing the instant civil revision petition under
Section 115 of the Civil Procedure Code, the petitioner/plaintiff
has made a challenge to the judgment and decree dated
09.10.2013 passed by the learned Additional District Judge No.1,
Jodhpur Metropolitan in Civil Original Suit No.05/2004 so also to
[2025:RJ-JD:37540] (2 of 5) [CR-32/2014]
set aside the order dated 18.07.2013 whereby the right to lead
evidence was closed by the learned trial Court.
2. I have heard the learned counsel for the parties and gone
through the record of the case.
3. Succinctly stated the facts of the case without unnecessary
details are that the petitioner herein filed a civil suit under Section
6 of the Specific Relief Act, 1963 averring therein his propriety
rights, title, interest and possession of the property until ejected.
There are specific averments in the suit regarding separate but
exclusive possession of the plaintiff over the shared area and a
specific date was given when the keys supplied by him to the
defendant were not returned to him. The possession of the
defendant over the property was taken dishonestly and, therefore,
prayer for recovery of possession was sought since the ejectment
made within six months of filing of the suit.
3.1 Although for a considerable period, the suit proceedings were
undertaken and opportunities were also given to the plaintiff to
lead evidence in support of his claim made in the plaint, however,
the plaintiff failed to avail it diligently, thus, constrained by so, the
learned trial Court vide its order dated 18.07.2013 closed the right
of the plaintiff to adduce evidence in support of his pleadings. In
close proximity, the suit was dismissed. Hence, aggrieved by the
closure of the right to adduce evidence as well as the dismissal of
the suit, the instant petition has been preferred.
3.2 There is fruitful submission of the learned for the respondent
that ample opportunities were granted to the plaintiff to lead
evidence and, therefore, no illegality was committed by the
learned trial Court.
[2025:RJ-JD:37540] (3 of 5) [CR-32/2014]
4. Before moving further with the discussion, it is necessary to
first analyze Order XLI Rule 23, Code of Civil Procedure, 1908. For
ready reference, the same is reproduced herein below:-
Order XLI- Appeals from Original Decrees
Rule 23. Remand of case by Appellate Court.--
Where the Court from whose decree an appeal is
preferred has disposed of the suit upon a preliminary
point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand
the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a
copy of its judgment and order to the Court from
whose decree the appeal is preferred, which directions
to re-admit the suit under its original number in the
register of civil suits, and proceed to determine the
suit; and the evidence (if any) recorded during the
original trial shall, subject to all just exceptions, be
evidence during the trial after remand.
4.1 In essence, Order XLI Rule 23 CPC empowers the Appellate
Court, upon setting aside a decree passed by the trial court on a
preliminary point, to remand the matter back to the trial court.
Upon such remand, the trial court is directed to re-admit the suit
at the same stage where it stood prior to disposal and proceed
with its determination in accordance with law. The rationale is that
when the trial court has not decided the suit on merits but has
disposed of it on a preliminary ground, the Appellate Court, upon
reversal of such decree, may afford the parties an opportunity to
lead evidence and contest the matter fully. Thus, the proceedings
revive from the stage where they were left, and the plaintiff is
granted another chance to establish his case. It is noticed that the
suit was dismissed in a close proximity to the closure of the
[2025:RJ-JD:37540] (4 of 5) [CR-32/2014]
evidence of the plaintiff, therefore, he had no other way but to
challenge both the orders through the instant petition.
5. I have pondered over the issue. The suit involves civil rights
of the parties on the property and I am of the view that the rights
must be adjudicated on merits. Delay, default, dereliction or
lethargy of a party can be taken care of suitably by imposing cost
upon him but at the same time, depriving him of his valuable
rights in property, would not be justifiable. The petitioner/plaintiff
is ready and willing to deposit cost towards the inconvenience
caused to the defendant by the delay. Upon consideration of the
entirety of the material, particularly the involvement of the civil
rights of the parties in valuable property, it would be in the
interest of justice to allow the party to adduce evidence in support
of their claim, so that the pleadings and the suit may be decided
on merits.
6. Accordingly, the instant revision petition is allowed. The
judgment and decree dated 09.10.2013 passed by the learned
Additional District Judge No.1, Jodhpur Metropolitan in Civil
Original Suit No.05/2004 so also the order dated 18.07.2013
passed by the learned trial Court are hereby quashed and set
aside.
6.1 The matter be remitted back to re-register the suit at its
original number provided the plaintiff deposits a cost of Rs.
50,000/- with the learned trial Court.
6.2 The learned trial Court shall disburse the amount to the
defendants upon their appearance. The learned trial Court shall
issue notices to the parties to the lis and whereupon it shall be
fixed for recording of evidence of the plaintiff. Due opportunities
[2025:RJ-JD:37540] (5 of 5) [CR-32/2014]
shall be given. After completion of the evidence of the plaintiff,
due opportunities shall also be provided to the defendants to lead
their evidence and whereafter the suit shall be disposed of in
accordance with law.
7. Stay petition stands disposed of.
8. Record be sent back forthwith.
9. It is expected from the learned trial Court to proceed with
the matter as soon as the record is received.
(FARJAND ALI),J
15-divya/-
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