Case Note & Summary
The case arises from a suit for declaration of ownership based on adverse possession filed by the plaintiffs (appellants) against the defendant (respondent). The trial Court decreed the suit in favor of the plaintiffs. The defendant appealed to the First Appellate Court, which partially allowed the appeal by remanding the matter to the trial Court. The First Appellate Court gave three reasons for remand: (a) the suit was a later suit and ought to have been stayed due to a prior suit with common subject matter; (b) the pleadings on adverse possession were insufficient; and (c) the defendant should be permitted to file a written statement, though the procedure for proceeding without written statement was properly followed. The plaintiffs, aggrieved by the remand order, filed the present appeal before the High Court. The High Court examined the legality of the remand order. It noted that the First Appellate Court itself observed that the procedure prior to proceeding without written statement was perfectly followed. The High Court held that once the trial Court had followed the procedure under Order VIII Rule 10 CPC, the defendant could not be permitted to file a written statement at the appellate stage. The High Court also found that the subject matter of the two suits was different and that the pleadings on adverse possession were sufficient. Consequently, the High Court allowed the appeal, set aside the remand order, and restored the trial Court's decree.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 and 23-A CPC - First Appellate Court's Power to Remand - The First Appellate Court remanded the suit on grounds of common subject matter with earlier suit, insufficient pleadings on adverse possession, and liberty to file written statement. The High Court held that the First Appellate Court exceeded its jurisdiction as the procedure prior to proceeding without written statement was perfectly followed, and the remand was not justified. (Paras 2-10) B) Civil Procedure - Written Statement - Order VIII Rule 1 and 10 CPC - Time Limit and Consequences - The defendant failed to file written statement within the prescribed time, and the trial Court proceeded under Order VIII Rule 10 CPC. The High Court held that once the procedure is followed, the defendant cannot be permitted to file written statement at the appellate stage, and the First Appellate Court cannot remand for that purpose. (Paras 4-8) C) Property Law - Adverse Possession - Pleadings and Proof - The trial Court decreed the suit based on evidence of adverse possession. The High Court found that the pleadings were sufficient and the First Appellate Court's observation of insufficiency was not a ground for remand. (Paras 2-3)
Issue of Consideration
Whether the First Appellate Court was justified in remanding the suit to the trial Court for permitting the defendant to file a written statement and for fresh decision, when the trial Court had already decreed the suit after following proper procedure.
Final Decision
The High Court allowed the appeal, set aside the remand order of the First Appellate Court, and restored the decree of the trial Court.
Law Points
- Order XLI Rule 23 CPC
- Order XLI Rule 23-A CPC
- Order VIII Rule 1 CPC
- Order VIII Rule 10 CPC
- adverse possession
- remand
- written statement
- procedure without written statement
