Case Note & Summary
Background: The litigation arose from two civil suits concerning a property bearing CTS No. 2680/B2 admeasuring 25 ft east-west and 65 ft south-north, along with a flour mill and two electric meters, situated in Jalgaon. The dispute centered on whether the property was joint family property or self-acquired property of the deceased Sitaram, and whether a Will dated 24.05.1988 executed by Sitaram bequeathing the property to his grandsons Sunil and Jitendra was valid. Facts: Pralhad, son of Sitaram, filed an application in 1987 to sue as an indigent person, and his suit was registered as Special Civil Suit No.159/1990 in 1990 seeking partition and separate possession of one-fifth share in the suit property, claiming it was joint family property purchased by his father from proceeds of sale of ancestral agricultural land and houses. During pendency, Sitaram died; his sons Pandurang and Vitthal admitted the suit claim, but mother Shantabai resisted, contending the property was self-acquired. The trial court decreed the suit on 28.06.1995, determining one-fourth share of Pralhad, holding the property was joint family property. Separately, in 1990, Sunil and Jitendra, sons of Pralhad, filed Regular Civil Suit No.62/1990 for declaration of ownership based on the Will of Sitaram. The trial court dismissed that suit on 23.11.2001, holding that the property was joint family property and Sitaram had no right to bequeath it. Shantabai filed First Appeal No.97 of 1996 before the Bombay High Court, which was later transferred to the lower court as Regular Civil Appeal No.137/2014 due to enhanced pecuniary jurisdiction. The dismissal of Regular Civil Suit No.62/1990 was challenged in Regular Civil Appeal No.27/2002. The Principal District Judge, Jalgaon, by common judgment and order dated 18.09.2015, remanded both civil suits for deciding afresh by common judgment to the Court of Civil Judge (Senior Division), Jalgaon, after consolidating them. Appeals from that remand order were filed before the High Court. Legal Issues: The core legal question was whether the lower appellate court was justified in remanding the two civil suits for fresh disposal by common judgment instead of deciding the appeals on merits, particularly when both trial courts had already decided the suits on merits after full opportunity. A related issue was whether consolidation of the suits was necessary due to the common question of the nature of the suit property. Arguments: Appellants argued that both civil suits had been decided on merit after full opportunity and the lower appellate court should have disposed of the appeals on merit rather than remanding, citing Supreme Court precedents on remand jurisdiction under the Code of Civil Procedure, 1908. Respondents supported the remand, arguing that Sunil and Jitendra were not parties to Special Civil Suit No.159/1990, and since a common question existed, the trial courts ought to have consolidated both suits for common disposal. Court's Analysis: The High Court observed that both trial courts had decided the suits on their own merits after giving full opportunity to the parties. The court considered the arguments on remand and the cited judgments, but the available excerpt ends before the final reasoning and decision. Decision: The final order of the High Court is not included in the provided text; the excerpt ends at paragraph 8, leaving the ultimate outcome on the appeals unstated.
Headnote
A) Civil Procedure - Remand Order - Code of Civil Procedure, 1908 - Not mentioned - The lower appellate court remanded two civil suits, Special Civil Suit No.159/1990 and Regular Civil Suit No.62/1990, for fresh disposal by common judgment after consolidation. Appellants contended that the suits had already been decided on merits with full opportunity and that the appellate court should have disposed of the appeals on merits rather than remanding; respondents argued that consolidation was necessary because a common question existed and Sunil and Jitendra were not parties to the first suit. The High Court noted that both trial courts had decided the suits on merits; final holding on the validity of remand is not included in the provided excerpt. Held: Not mentioned. (Paras 4-8)
Issue of Consideration
Whether the lower appellate court erred in remanding the two civil suits for fresh disposal by common judgment instead of deciding the appeals on merits; whether consolidation of the suits was necessary due to a common question regarding the nature of the suit property
Final Decision
Not mentioned in the provided text. The available excerpt ends at paragraph 8 before the High Court's final order, leaving the ultimate outcome on the appeals unstated.
Law Points
- Remand order should not be passed when appellate court can decide matter on merits
- Lower appellate court ought to exercise appellate jurisdiction instead of remanding decided suits
- Consolidation of suits with common questions of fact and law may be directed under Code of Civil Procedure
- 1908
- Trial court's decision on merits after full opportunity cannot be nullified by remand without sufficient cause
Case Details
2022 LawText (BOM) (10) 22
Appeal from Order No. 94 of 2015 with Civil Application No. 14264 of 2015; Appeal from Order No. 95 of 2015 with Civil Application No. 14265 of 2015
Mr. Girish Rane (for appellants); Mr. G.V. Wani (for respondents)
Pandurang Sitaram Choudhari (Borse) and Vitthal Sitaram Choudhari (Borse) (deceased through LRs) and Others
Sunil Pralhad Choudhari, Jitendra Pralhad Choudhari (deceased through LRs), Pralhad Sitaram Choudhari (deceased through LRs), District Inspector of Land Records and City Survey Officer No.1, Jalgaon, Shantabai Sitaram Choudhari (deceased through LRs)
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Nature of Litigation
Appeals from order under the Code of Civil Procedure, 1908, challenging a common remand order passed by the Principal District Judge, Jalgaon, in two civil suits involving partition, declaration of title based on a Will, and the nature of the suit property as joint family or self-acquired property.
Remedy Sought
Appellants sought to set aside the remand order dated 18.09.2015 passed by the Principal District Judge, Jalgaon, and requested that the appeals be decided on merits instead of remanding the suits for fresh disposal.
Filing Reason
The lower appellate court remanded both civil suits for fresh disposal by common judgment after consolidation; appellants contended the remand was erroneous because both suits had already been decided on merits after full opportunity.
Previous Decisions
Special Civil Suit No.159/1990 was decreed by the 4th Joint Civil Judge (Senior Division), Jalgaon on 28.06.1995, determining one-fourth share of plaintiff Pralhad and holding the suit property was joint family property. Regular Civil Suit No.62/1990 was dismissed by the Civil Judge (Senior Division), Jalgaon on 23.11.2001, holding that the suit property was joint family property and the Will was invalid. The Principal District Judge, Jalgaon, by common judgment dated 18.09.2015, remanded both suits for fresh disposal by common judgment after consolidation.
Issues
Whether the lower appellate court erred in remanding the two civil suits for fresh disposal by common judgment instead of deciding the appeals on merits
Whether consolidation of the two suits was necessary due to a common question about the nature of the suit property
Submissions/Arguments
Appellants argued that both civil suits had been decided on merit after full opportunity, and the lower appellate court should have disposed of the appeals on merit instead of remanding; they relied on Supreme Court judgments on remand jurisdiction under the Code of Civil Procedure, 1908.
Respondents supported the remand, arguing that Sunil and Jitendra were not parties to Special Civil Suit No.159/1990, and since a common question existed regarding the nature of the suit property, the trial courts ought to have consolidated both suits for disposal by common judgment.
Ratio Decidendi
Not mentioned in the provided text. The excerpt indicates the court noted that both trial courts had decided the suits on merits with full opportunity, but the final legal principles applied to the remand issue are not available.
Judgment Excerpts
The learned lower Court has remanded both the aforesaid civil suits for deciding afresh by common judgment to the Court of Civil Judge (Senior Division), Jalgaon. (Para 1)
The concerned trial Courts have decided both the civil suits namely Special Civil Suit No. 159/1990 and Regular Civil Suit No. 62/1990 on its own merits and by giving full opportunity to the parties concerned of leading the evidence. (Para 8)
The learned lower Court, after hearing the appeals, has passed common order in those appeals and thereby remanded the concerned civil suits to the court of Civil Judge (Senior Division), Jalgaon for deciding the same afresh by common judgment, after consolidating the same. (Para 4)
Procedural History
In 1987, Pralhad filed Misc. Civil Application No.102/1987 seeking permission to sue as an indigent person, which was allowed. His suit was registered as Special Civil Suit No.159/1990 in 1990 seeking partition and separate possession. Separately, on 03.02.1990, Sunil and Jitendra filed Regular Civil Suit No.62/1990 for declaration of ownership based on a Will dated 24.05.1988. On 28.06.1995, the 4th Joint Civil Judge (Senior Division), Jalgaon decreed Special Civil Suit No.159/1990. On 23.11.2001, the Civil Judge (Senior Division), Jalgaon dismissed Regular Civil Suit No.62/1990. Shantabai filed First Appeal No.97 of 1996 before the Bombay High Court, which was later transferred to the lower court as Regular Civil Appeal No.137/2014. Regular Civil Appeal No.27/2002 was filed against the dismissal of Regular Civil Suit No.62/1990. On 18.09.2015, the Principal District Judge, Jalgaon passed a common judgment remanding both suits for fresh disposal by common judgment after consolidation. The present appeals from order were filed challenging that remand order. The High Court reserved judgment on 16.09.2022 and pronounced judgment on 07.10.2022, but the provided excerpt ends before the final decision.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC):
