Case Note & Summary
The appellant-defendant appealed against the judgment and order dated 27 November 2020 passed by the learned Principal District Judge, Amravati, in Regular Civil Appeal No.42 of 2013, which set aside the judgment and decree of the Civil Judge, Junior Division, Warud, in Regular Civil Suit No.22 of 2004 and remanded the matter back for fresh trial. The respondent-plaintiff had filed the suit for declaration of ownership over a well and for perpetual injunction against the appellant-defendant, alleging obstruction in construction activity. The trial court dismissed the suit. On appeal, the lower appellate court remanded the matter without recording a finding that the trial court's decree was reversed on a preliminary point as required under Order 41 Rule 23 CPC. The High Court held that the remand order was without jurisdiction and set it aside, restoring the appeal to the file of the lower appellate court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Jurisdictional Error - The lower appellate court set aside the trial court's decree and remanded the suit for fresh trial without recording a finding that the trial court's decree was reversed on a preliminary point as required under Order 41 Rule 23 CPC. Held that the remand order was without jurisdiction and liable to be set aside (Paras 1-25).
Issue of Consideration
Whether the lower appellate court exceeded its jurisdiction under Order 41 Rule 23 CPC by remanding the suit for fresh trial without recording a finding that the trial court's decree was reversed on a preliminary point.
Final Decision
The appeal is allowed. The impugned judgment and order dated 27th November 2020 passed by the learned Principal District Judge, Amravati, in Regular Civil Appeal No.42 of 2013 is set aside. The Regular Civil Appeal No.42 of 2013 is restored to the file of the learned Principal District Judge, Amravati, for fresh disposal in accordance with law. The parties are directed to appear before the lower appellate court on 11th July 2022. Civil Application No.9 of 2021 is disposed of accordingly.
Law Points
- Order 43 Rule 1(u) CPC
- Remand
- Jurisdictional Error
- Civil Procedure
Case Details
2022 LawText (BOM) (06) 96
Appeal Against Order No.6 of 2021 with Civil Application No.9 of 2021
Mr. Rohit Joshi for the Appellant, Mr. S.P. Kshirsagar for the Respondent
Baban S/o. Madhavrao Malpe
Yogeshwar S/o. Purushottam Kanugo
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Nature of Litigation
Civil appeal against remand order in a suit for declaration and perpetual injunction.
Remedy Sought
Appellant-defendant sought setting aside of the remand order passed by the lower appellate court.
Filing Reason
The lower appellate court remanded the suit for fresh trial without jurisdiction.
Previous Decisions
Trial court dismissed the suit; lower appellate court set aside the decree and remanded the matter.
Issues
Whether the lower appellate court exceeded its jurisdiction under Order 41 Rule 23 CPC by remanding the suit without recording a finding that the trial court's decree was reversed on a preliminary point.
Submissions/Arguments
Appellant argued that the remand order was without jurisdiction as the lower appellate court did not record a finding that the trial court's decree was reversed on a preliminary point.
Respondent supported the remand order.
Ratio Decidendi
A remand under Order 41 Rule 23 CPC is permissible only when the lower appellate court reverses the decree on a preliminary point. Without such a finding, the remand order is without jurisdiction and liable to be set aside.
Judgment Excerpts
The appellant–original defendant has preferred the present appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (the Code) against judgment and order dated 27th November 2020 passed by the learned Principal District Judge, Amravati, in Regular Civil Appeal No.42 of 2013 thereby setting aside the judgment and decree of learned Civil Judge, Junior Division, Warud, passed in Regular Civil Suit No.22 of 2004 and remanding back the matter to the said Court with a direction as given in paragraph 25 of the impugned judgment and order of the learned Principal District Judge, Amravati.
Procedural History
The respondent-plaintiff filed Regular Civil Suit No.22 of 2004 for declaration and perpetual injunction. The trial court dismissed the suit. The respondent-plaintiff appealed to the Principal District Judge, Amravati, in Regular Civil Appeal No.42 of 2013, which set aside the trial court's decree and remanded the matter. The appellant-defendant then filed the present appeal under Order 43 Rule 1(u) CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Order 43 Rule 1(u), Order 41 Rule 23
