Case Note & Summary
The appellant, original defendant No. 2, challenged the judgment and decree dated 12.10.2022 passed by the learned District Judge-4, Jalna (First Appellate Court) in Regular Civil Appeal No. 129 of 2017. The First Appellate Court had set aside the trial court's dismissal of Regular Civil Suit No. 110 of 2012 and remanded the matter for fresh decision on issue No. 3, with a direction to the plaintiff to include all joint family properties, specifically a plot at Bhokardan Road, Jalna, which the plaintiff had earlier relinquished due to inability to pay court fees. The appellant contended that the remand was routine and beyond the scope of Order XLI Rule 23 CPC, and that the plaintiff was barred under Order II Rule 2 CPC from claiming a share in the relinquished property. The respondent No. 1/plaintiff supported the remand, arguing that other defendants did not object. The High Court held that the trial court had correctly dismissed the suit for non-inclusion of all joint family properties, but the First Appellate Court erred in directing inclusion of the relinquished plot. The proper course was to remand under Order XLI Rule 25 CPC for deciding issue No. 3 afresh, without adding new property. The High Court set aside the impugned order and directed the trial court to decide issue No. 3 afresh after giving parties an opportunity to adduce evidence, while clarifying that the plaintiff cannot claim a share in the Bhokardan Road plot in this suit.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 CPC - Scope of Remand - The First Appellate Court's order of remand directing inclusion of a property which the plaintiff had voluntarily relinquished due to inability to pay court fees was held to be beyond the scope of Order XLI Rule 23 CPC, as the trial court had already decided all issues except the ground of non-inclusion of all joint family properties. The proper course was to remand under Order XLI Rule 25 CPC for deciding issue No. 3 afresh, not to permit addition of new property. (Paras 9-12)
B) Partition Suit - Partial Partition - Inclusion of All Joint Family Properties - A suit for partition must ordinarily include all joint family properties to enable equitable partition by metes and bounds. However, where a plaintiff voluntarily relinquishes a property due to inability to pay court fees, the suit cannot be dismissed solely on that ground; the court may proceed with the properties included, subject to the bar under Order II Rule 2 CPC. (Paras 9-10)
C) Civil Procedure - Order II Rule 2 CPC - Relinquishment of Claim - When a plaintiff omits to sue for a part of the claim without leave of the court, the bar under Order II Rule 2(3) CPC applies. In this case, the plaintiff's express waiver of his share in the plot at Bhokardan Road, Jalna, amounted to relinquishment, and the First Appellate Court could not direct inclusion of that property in the suit. (Paras 9-10)
Issue of Consideration
Whether the First Appellate Court was justified in remanding the matter to the trial court with a direction to include a plot at Bhokardan Road, Jalna, which the plaintiff had expressly relinquished, and whether such remand exceeded the scope of Order XLI Rule 23 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the appeal, setting aside the impugned judgment and decree dated 12.10.2022 passed by the learned District Judge-4, Jalna. The matter was remanded back to the trial court with a direction to decide issue No. 3 afresh after giving an opportunity to the parties to adduce evidence, but without directing inclusion of the plot at Bhokardan Road, Jalna. The plaintiff cannot claim a share in that plot in this suit.
Law Points
- Order XLI Rule 23 CPC
- Order XLI Rule 25 CPC
- Order II Rule 2 CPC
- Partial Partition Suit
- Remand Power
- Inclusion of Joint Family Properties
Case Details
2024 LawText (BOM) (10) 246
Appeal from Order No. 10 of 2023 with Civil Application No. 2036 of 2023
Mr. Bharat R. Warmaa (Appellant), Mr. Subhodh P. Shah (Respondent No.1), Mr. Girish S. Rane (Respondent Nos. 2 to 5), Ms. Kojagiri M. Salve holding for Mr. Amol R. Joshi (Respondent No.1-A to 1-C)
Hiralal S/o Chhaburao Jawale
Nandlal S/o Chhaburao Jawale and Others
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Nature of Litigation
Appeal from Order challenging the First Appellate Court's remand order in a partition suit.
Remedy Sought
The appellant (original defendant No.2) sought quashing of the First Appellate Court's order remanding the matter to the trial court with a direction to include a plot at Bhokardan Road, Jalna, which the plaintiff had relinquished.
Filing Reason
The appellant contended that the First Appellate Court exceeded its power under Order XLI Rule 23 CPC by directing inclusion of a property voluntarily relinquished by the plaintiff, and that the remand was routine and without considering merits.
Previous Decisions
The trial court (Civil Judge, Senior Division, Jalna) dismissed Regular Civil Suit No. 110 of 2012 on 30.06.2017 on the sole ground that all joint family properties were not included. The First Appellate Court (District Judge-4, Jalna) set aside that dismissal on 12.10.2022 and remanded the matter for fresh decision on issue No. 3, with a direction to include the Bhokardan Road plot.
Issues
Whether the First Appellate Court was justified in remanding the matter to the trial court with a direction to include a plot at Bhokardan Road, Jalna, which the plaintiff had expressly relinquished?
Whether such remand exceeded the scope of Order XLI Rule 23 of the Code of Civil Procedure, 1908?
Submissions/Arguments
Appellant: The First Appellate Court erred in remanding the matter as a routine; it should have decided the appeal on merits. The remand should have been under Order XLI Rule 25 CPC, not Rule 23. The plaintiff's relinquishment of the Bhokardan Road plot bars him under Order II Rule 2 CPC from claiming a share in it. The direction to amend the plaint is beyond the scope of Section 96 read with Order XLI Rule 23 CPC.
Respondent No.1/plaintiff: Supported the remand order, arguing that only the appellant objects, while other defendants do not. Relied on R. Mahalakshmi vs. A. Kanchana and Vurimi Pullarao vs. Vemari Vyankata Radharani.
Respondent Nos. 3,4,5: Supported the remand order, relying on Life Insurance Corporation of India vs. Sanjeev Builders and Govindrao vs. Dadarao.
Ratio Decidendi
The First Appellate Court exceeded its power under Order XLI Rule 23 CPC by directing inclusion of a property which the plaintiff had voluntarily relinquished. The proper course was to remand under Order XLI Rule 25 CPC for deciding issue No. 3 afresh, without adding new property. The plaintiff's express waiver of his share in the Bhokardan Road plot amounts to relinquishment, and the bar under Order II Rule 2 CPC applies.
Judgment Excerpts
The learned trial Court has held that the suit properties mentioned in the plaint are joint family properties... However, the learned trial Court has dismissed the suit only on the sole ground that all the joint family properties were not included in the plaint.
The main question in the present dispute is, whether the act of learned First Appellate Court remanding matter back to the trial Court for inclusion of the aforesaid plot in the plaint can be justified?
The learned First Appellate Court in violation of the aforesaid observations, had remanded the matter back to the learned trial Court by enlarging the scope of the suit.
Procedural History
The plaintiff filed Regular Civil Suit No. 110 of 2012 for partition and declaration. The trial court dismissed the suit on 30.06.2017 on the ground that all joint family properties were not included. The plaintiff appealed to the First Appellate Court, which allowed the appeal on 12.10.2022 and remanded the matter. The appellant (defendant No.2) then filed the present Appeal from Order No. 10 of 2023 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order II Rule 2, Order XLI Rule 23, Order XLI Rule 25, Section 96
