Case Note & Summary
The present appeal from order was filed by the original defendants challenging the judgment and order passed by the learned District Judge-12, Aurangabad in Regular Civil Appeal No.232 of 2014 on 24.02.2020. The first appellate court had set aside the judgment and decree passed by the learned 2nd Joint Civil Judge Junior Division, Kannad in Regular Civil Suit No.155 of 2011 on 22.08.2014 and remanded the suit for giving opportunity to both sides to lead evidence. The trial court had dismissed the suit on the grounds that it was barred by limitation and that the civil court had no jurisdiction to entertain the suit. The plaintiffs had sought possession and declaration of title in respect of agricultural land. The defendants claimed that one Vitthal Aba was declared a tenant and later became owner, and that he executed a will in favour of defendant No.1, and defendant No.2 purchased part of the land from a nephew of Vitthal Aba. The first appellate court held that the suit was within limitation and the civil court had jurisdiction, and remanded the matter without framing other points. The appellants contended that the first appellate court erred in remanding without properly considering the issues. The High Court heard the appeal and allowed it, setting aside the remand order and restoring the appeal to the file of the first appellate court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Remand - Appellate Court's Power - Order 41 Rule 23 CPC - The first appellate court set aside the trial court's decree and remanded the suit for fresh evidence without framing points for determination on limitation and jurisdiction - Held that the appellate court must decide all issues arising in the appeal and cannot remand without proper consideration (Paras 1-3).
Issue of Consideration
Whether the first appellate court was justified in setting aside the trial court's decree and remanding the suit without properly considering the issues of limitation and jurisdiction.
Final Decision
The appeal is allowed. The impugned judgment and order dated 24.02.2020 passed by the learned District Judge-12, Aurangabad in Regular Civil Appeal No.232 of 2014 is set aside. The Regular Civil Appeal No.232 of 2014 is restored to the file of the first appellate court for fresh disposal in accordance with law. The first appellate court shall decide the appeal afresh after giving opportunity to both sides. Civil Application No.7992 of 2020 is disposed of accordingly.
Law Points
- Limitation
- Jurisdiction of Civil Court
- Remand
- Tenancy Rights
- Will
- Possessory Title
Case Details
2021 LawText (BOM) (02) 3
Appeal from Order No.30 of 2020 with Civil Application No.7992 of 2020
Smt. Vibha Kankanwadi, J.
Mr. P. F. Patni for appellants, Mr. V. A. Bagdiya for respondents
Karbhari Aashruba Ingle and Dadasaheb Karbhari Ingle
Dhannulal @ Dhanraj Bhikulal Bhartiya, Mahendra Satyanarayan Bhartiya, Sau. Madhuri Rajesh Bharuka, Santoshkumar Satyanarayan Bhartiya
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Nature of Litigation
Appeal from order challenging the judgment and order of the first appellate court which set aside the trial court's decree and remanded the suit.
Remedy Sought
Appellants (original defendants) sought to set aside the remand order and restore the trial court's decree dismissing the suit.
Filing Reason
The first appellate court set aside the trial court's decree and remanded the suit without properly considering the issues of limitation and jurisdiction.
Previous Decisions
The trial court (2nd Joint Civil Judge Junior Division, Kannad) dismissed Regular Civil Suit No.155 of 2011 on 22.08.2014 holding that the suit was barred by limitation and the civil court had no jurisdiction. The first appellate court (District Judge-12, Aurangabad) in Regular Civil Appeal No.232 of 2014 on 24.02.2020 set aside the trial court's decree and remanded the suit for fresh evidence.
Issues
Whether the first appellate court was justified in remanding the suit without deciding the issues of limitation and jurisdiction.
Whether the first appellate court erred in not framing points for determination under Order 41 Rule 23 CPC.
Submissions/Arguments
Appellants argued that the trial court had correctly held the suit was barred by limitation and the civil court had no jurisdiction, and the first appellate court erred in remanding without deciding these issues.
Respondents argued that the first appellate court correctly held the suit was within limitation and the civil court had jurisdiction, and the remand was proper to allow parties to lead evidence.
Ratio Decidendi
The first appellate court must decide all issues arising in the appeal, including limitation and jurisdiction, before remanding the suit under Order 41 Rule 23 CPC. A remand without proper consideration of these issues is not sustainable.
Judgment Excerpts
Present appeal from order has been filed by original defendants challenging the judgment and order passed in Regular Civil Appeal No.232 of 2014 by learned District Judge-12, Aurangabad on 24.02.2020, thereby setting aside the judgment and decree passed by learned 2nd Joint Civil Judge Junior Division, Kannad, District Aurangabad in Regular Civil Suit No.155 of 2011 on 22-08-2014 and remanding the suit for giving opportunity to both sides to lead the evidence, if any.
Procedural History
The plaintiffs filed Regular Civil Suit No.155 of 2011 before the 2nd Joint Civil Judge Junior Division, Kannad, which was dismissed on 22.08.2014. The plaintiffs appealed in Regular Civil Appeal No.232 of 2014 before the District Judge-12, Aurangabad, who allowed the appeal and remanded the suit on 24.02.2020. The defendants filed the present Appeal from Order No.30 of 2020 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 23
