Case Note & Summary
The appellant, Tikamdas s/o Sukhdevdas Vaishnao, filed an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 (CPC) against the judgment and decree dated 04.01.2018 passed by the learned District Judge-2, Achalpur in Regular Civil Suit No.67 of 2012. The appellant was the plaintiff in the original suit, which was filed for recovery of Rs.5,27,421/- for construction of a Cottage Hospital at Achalpur. The defendants, the State of Maharashtra and the Executive Engineer, Public Works Department, had entrusted the construction to the plaintiff, who claimed to have completed the work by end of July 1990. The defendants withheld payment, leading to the suit. The trial court (Civil Judge, Senior Division) in Special Civil Suit No.37 of 1994 had decreed the suit in favor of the plaintiff. The defendants appealed, and the learned District Judge set aside the decree and remanded the matter to the trial court with a direction to decide the issue of limitation and to decide the entire suit afresh by giving an opportunity to the parties to lead evidence. The plaintiff appealed against this remand order. The High Court held that the appeal under Order XLIII Rule 1(u) CPC is maintainable. The court noted that the learned District Judge had not decided the issue of limitation as a preliminary issue before remanding the matter. The High Court directed the trial court to frame the issue of limitation and decide it as a preliminary issue before proceeding with the suit. The appeal was allowed, and the impugned judgment and decree were set aside. The matter was remanded to the trial court with the direction to decide the issue of limitation as a preliminary issue.
Headnote
A) Civil Procedure - Appeal against remand - Order XLIII Rule 1(u) CPC - Maintainability - The appeal under Order XLIII Rule 1(u) CPC is maintainable against a remand order passed by the lower appellate court. The court held that the appeal is maintainable and the learned District Judge erred in remanding the matter without deciding the issue of limitation as a preliminary issue. (Paras 2, 6) B) Limitation - Preliminary issue - Duty of court - The court held that the issue of limitation is a preliminary issue that ought to have been decided by the learned District Judge before remanding the matter. The trial court is directed to frame and decide the issue of limitation as a preliminary issue before proceeding with the suit. (Paras 6, 7)
Issue of Consideration
Whether the appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure is maintainable against the impugned judgment and decree dated 04.01.2018 passed by the learned District Judge-2, Achalpur in Regular Civil Suit No.67 of 2012, and whether the learned District Judge erred in remanding the matter without deciding the issue of limitation as a preliminary issue.
Final Decision
The appeal is allowed. The impugned judgment and decree dated 04.01.2018 passed by the learned District Judge-2, Achalpur in Regular Civil Suit No.67 of 2012 is set aside. The matter is remanded to the trial court with a direction to frame the issue of limitation and decide it as a preliminary issue before proceeding with the suit.
Law Points
- Order XLIII Rule 1(u) CPC
- maintainability of appeal against remand order
- preliminary issue of limitation
- duty of appellate court to decide preliminary issues before remand
