Case Note & Summary
The dispute originated from a suit filed by the appellant (original plaintiff) and respondent Nos. 3 to 5 (original plaintiffs) against respondent Nos. 1 and 2 (original defendants) concerning the discharge of waste water from taps located on the defendants' double-storeyed building onto the plaintiffs' adjacent land. The plaintiffs alleged that the waste water caused damage to their land, rendering it unusable. After a notice served on 4.4.1976, the plaintiffs instituted Regular Civil Suit No. 69 of 1976 seeking a permanent injunction. On 19.8.1987, the trial court decreed the suit, permanently restraining the defendants from discharging waste water and directing removal of the taps. The defendants appealed in Regular Civil Appeal No. 244 of 1987, which was allowed by the learned Additional District Judge, Dhule, on 1.3.2000, remanding the matter back to the trial court. The appellant then filed the present Appeal from Order. The appellant argued that the appellate court exercised its power under Order XLI Rule 23 CPC in a casual manner, as the trial court had already determined the plaintiff's ownership based on pleadings and evidence. The appellant contended that the respondents' plea of easement implicitly accepted the plaintiff's ownership, and the remand after 25 years caused great inconvenience and injustice. The High Court, per Justice S.S. Shinde, found merit in the appellant's submissions and set aside the remand order, allowing the appeal.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 CPC - Appellate court cannot remand a case in a casual manner; the judgment and decree must be set aside as perverse before ordering remand. The trial court had held the plaintiff to be the owner of the suit property after considering pleadings and evidence. The respondents' plea of easement implicitly accepted the plaintiff's ownership. The appellate court's order of remand after 25 years was held to be unjustified and causing great inconvenience to the appellant. (Paras 1-3)
Issue of Consideration
Whether the appellate court was justified in remanding the matter back to the trial court under Order XLI Rule 23 of the Code of Civil Procedure, 1908, when the trial court had already decided the issue of ownership and the respondents had raised a plea of easement.
Final Decision
The appeal is allowed. The order dated 1.3.2000 passed by the learned Additional District Judge, Dhule in Regular Civil Appeal No. 244 of 1987 is set aside. The Regular Civil Appeal No. 244 of 1987 is restored to the file of the appellate court for fresh hearing and disposal in accordance with law. The appellate court is directed to decide the appeal expeditiously, preferably within six months from the date of receipt of the order. Civil Application No. 3374 of 2000 is disposed of accordingly.
Law Points
- Order XLI Rule 23 CPC
- Remand
- Perverse Judgment
- Easement
- Ownership
- Nuisance
Case Details
2010 LawText (BOM) (10) 21
Appeal from Order No. 37 of 2000 with Civil Application No. 3374 of 2000
Mr. A.N. Sabnis h/f Mr. P.M. Shah, senior counsel, for the appellant; Mr. C.V. Thombre, advocate for respondent No.2
Jagannath Beniram Wani (through L.Rs. of deceased Beniram Shriram Wani)
Ramchandra Nathalal Gujarathi, Pannalal Nathalal Gujarathi, Venubai Beniram Wani, Shevantabai Keshav Wani, Madhavrao Beniram Wani
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Nature of Litigation
Civil appeal against an appellate court's order of remand in a suit for permanent injunction regarding discharge of waste water.
Remedy Sought
The appellant sought to set aside the remand order and restore the trial court's decree.
Filing Reason
The appellate court allowed the appeal and remanded the matter back to the trial court, which the appellant challenged as being casual and causing injustice.
Previous Decisions
The trial court decreed the suit on 19.8.1987, permanently restraining the respondents from discharging waste water and directing removal of taps. The appellate court allowed the appeal and remanded the matter on 1.3.2000.
Issues
Whether the appellate court was justified in remanding the matter under Order XLI Rule 23 CPC when the trial court had already decided the issue of ownership.
Whether the remand order after 25 years caused great inconvenience and injustice to the appellant.
Submissions/Arguments
The appellant argued that the appellate court exercised its power under Order XLI Rule 23 in a casual manner and that the trial court's judgment was not perverse.
The appellant contended that the respondents' plea of easement implicitly accepted the plaintiff's ownership over the suit property.
The appellant submitted that the remand after 25 years caused great inconvenience and injustice.
Ratio Decidendi
The appellate court cannot exercise its power of remand under Order XLI Rule 23 CPC in a casual manner. The trial court had already decided the issue of ownership after considering pleadings and evidence, and the respondents' plea of easement implicitly accepted the plaintiff's ownership. Therefore, the remand order was not justified and caused great inconvenience to the appellant.
Judgment Excerpts
Learned counsel appearing for the appellant submitted that the provisions of Order XLI Rule 23 cannot be exercised in casual manner that the judgment and decree being liable to be set aside as perverse.
It is further submitted that when the respondents have raised plea of easement, it was implicit that they accepted the ownership of the plaintiff over the suit property.
Procedural History
The appellant and respondent Nos. 3 to 5 (original plaintiffs) filed R.C.S. No. 69 of 1976 seeking injunction against respondents Nos. 1 and 2 (original defendants). The trial court decreed the suit on 19.8.1987. The defendants appealed in Regular Civil Appeal No. 244 of 1987, which was allowed on 1.3.2000, remanding the matter. The appellant then filed the present Appeal from Order.
Acts & Sections
- Code of Civil Procedure, 1908: Order XLI Rule 23
