Case Note & Summary
The present appeal arises from a judgment and order of remand passed by the learned Ad hoc District Judge-1, Jalgaon, in Regular Civil Appeal No.877 of 2012 dated 19.08.2019. The appellants are the original plaintiff (Nanda Bhaskarrao Jagtap) and defendant No.3 (Pramod Vitthalrao Ghadge), while the respondents are defendants No.1 and 2 (Bakulabai wd/o Shrirang Kale and Prakash Shrirang Kale). The plaintiff, who is the sister of defendants No.2 and 3 and daughter of defendant No.1, filed Special Civil Suit No.8 of 2000 on 18.01.2000 seeking partition of the property left by her father, who died on 30.12.1998. She claimed to be a legal heir entitled to a share. Before filing the suit, she sent a notice for partition through a lawyer, but her brother denied her share. Defendant No.1 contended that soon after the father's death, on the day of Varsha-Shraddha, the plaintiff voluntarily relinquished her right in favour of defendants No.1 and 2 in the presence of her husband and other relatives. It was also claimed that the father had expended money on her marriage in 1977 and given ornaments, and that the father was indebted, leading to her relinquishment. The trial court decreed the suit in favour of the plaintiff. On appeal, the appellate court found that the trial court had failed to frame issues on limitation and voluntary relinquishment. Without deciding the appeal on merits, the appellate court set aside the decree and remanded the suit to the trial court for fresh decision after framing additional issues. The appellants challenged this remand order. The High Court observed that the trial court had decided the suit on merits after parties led evidence and argued. The failure to frame issues was not fatal as parties knew the case. The appellate court could have decided the appeal on merits or framed additional issues under Order XLI Rule 25 CPC and remitted only those issues for trial. The High Court held that the remand order was improper and set it aside, directing the appellate court to decide the appeal on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 and Rule 25 CPC - Appellate court's power to remand - The appellate court remanded the suit for fresh decision after framing additional issues of limitation and relinquishment. However, the High Court held that since the trial court had decided the suit on merits and parties had led evidence, the appellate court should have decided the appeal on merits or framed additional issues under Rule 25 and remitted only those issues for trial, instead of setting aside the entire decree. Held that the remand order was improper and set aside. (Paras 1-10) B) Civil Procedure - Issues - Failure to frame issues - Effect - The trial court failed to frame issues on limitation and voluntary relinquishment. However, the parties led evidence and argued on those points. The High Court held that failure to frame issues is not fatal if the parties knew the case and had opportunity to lead evidence. The appellate court could have decided the appeal on merits or framed additional issues under Order XLI Rule 25 CPC. (Paras 5-10) C) Hindu Law - Partition - Daughter's right - Relinquishment - The plaintiff, a daughter, claimed share in father's property. Defendants alleged she voluntarily relinquished her right on the day of Varsha-Shraddha. The trial court decreed the suit. The appellate court remanded for framing issue on relinquishment. The High Court set aside remand, directing the appellate court to decide the appeal on merits. (Paras 2-10)
Issue of Consideration
Whether the appellate court was justified in remanding the suit to the trial court for fresh decision after framing additional issues, when the parties had already led evidence and the trial court had decided the suit on merits.
Final Decision
The appeal is allowed. The impugned judgment and order of remand dated 19.08.2019 passed by the learned Ad hoc District Judge-1, Jalgaon in Regular Civil Appeal No.877 of 2012 is set aside. The matter is remitted back to the appellate court to decide the appeal on merits in accordance with law. The appellate court may frame additional issues if necessary under Order XLI Rule 25 CPC. The parties are directed to appear before the appellate court on 13.11.2023.
Law Points
- Remand order set aside when trial court can decide on existing evidence
- Failure to frame issues not fatal if parties have led evidence
- Order XLI Rule 23 CPC applies only when suit is decided on preliminary point
- Order XLI Rule 25 CPC allows trial court to frame additional issues after remand
