Uttarakhand High Court
Dharam Singh vs Panna Lal Shah And Others on 17 December, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
AO No. 546 of 2014
Dharam Singh ................. Appellant
-versus-
Panna Lal Shah and others .......... Respondents
Date of hearing and Judgement: 17.12.2021
Advocates appeared in the case:-
For Appellant : Mr. Sudhir Kumar, learned counsel for
the appellant.
For Respondents : Mr. B. M. Pingal, learned counsel for
the respondents.
Sri S.K.Mishra, J.
1. Heard learned counsel for the appellant Mr. Sudhir
Kumar and Mr. B.M.Pingal, learned counsel for the
respondents.
2. This appeal has been preferred under Order 43 Rule
(1)(u) of the Code of Civil Procedure, 1908
(hereinafter referred to as 'the Code' for brevity) by
the defendant-respondents in Civil Appeal No. 04 of
2012, of the Court of learned District Judge,
Uttarkashi, allowing the application under Order 41
Rule 27 of the Code, accepted an additional evidence
of a registered Gift-Deed and then remanding the
matter back to the learned Civil Judge (J.D.),
Uttarkashi for reconsideration of the issue of the suit.
Learned counsel for the defendant-respondent-
petitioner that the order passed by the learned
District Judge is erroneous on the face of the record
that he has directed the Civil Judge (J.D) to
reconsider the issues and decide the matter afresh
without setting aside the findings given original and
the decree passed in consequence thereto. Learned
counsel further submitted that in such situation, the
learned District Judge should have remitted the
matter back only for a limited purpose of recording
the evidence for acceptance of the Gift-Deed subject
to proof, admissibility and relevancy. This Court
considers the submissions made by the learned
counsel for the appellant is correct in view of the fact
that the learned District Judge has not set aside the
findings of the trial court on issues, the final
judgment and the decree passed in the first instance,
remand of the case for a full scale rehearing, appears
to be erroneous.
3. Hence, the AO is allowed to that extent. The order
dated 17.12.2011 is hereby set aside. In stead of an
open reward, the matter is hereby directed to be
remanded back to the court of learned Civil Judge
(J.D.), Uttarkashi, only for the purpose of recording
of the evidence of such witnesses as may be
necessary to prove the Gift-Deed concerned, with a
right of rebuttal evidence to the plaintiff.
4. In that view of the matter after recording the
evidences as directed above, the learned Civil Judge
(J/D), Uttarkashi, shall submit the Trial Court Records
to the Court of learned District Judge, Uttarkashi,
who shall restore the Civil Appeal No. 4 to its original
number and consider the additional material along
with the existing material and shall proceed to the
hearing of the appeal on merit.
5. There shall be no order as to the costs.
6. Urgent certified copy of this order be granted on
proper application.
(S.K.Mishra)
Judge
KKS
