Case Note & Summary
The appellant, Pandu Laxman Bhalerao, was the defendant no.1 in Regular Civil Suit No.52 of 1988 filed by respondent no.1, Narayan Sukhadeo Bhalerao, in the court of Civil Judge, Junior Division, Sinnar. The plaintiff sought a perpetual injunction against the defendants, alleging that he owned and possessed agricultural land in Gat No.12 and had installed an electric motor on a well located therein. He claimed that the defendants, his cousins, owned neighbouring Gat No.13 and obstructed him from pumping water, and had manipulated revenue records to show the well in Gat No.13. The trial court, after assessing evidence, dismissed the suit on 29/6/1991, finding that the plaintiff was not the exclusive owner and user of the suit well, though he owned the electric motor. The plaintiff appealed to the Additional District Judge at Nashik in Civil Appeal No.268 of 1991. The lower appellate court, on 20/11/1996, set aside the trial court's decree and remanded the suit under Order 41 Rule 23 CPC, directing that the appellant-defendant no.1 be given an opportunity to bring the legal representatives of defendant no.3 on record, and that the trial should start from the stage after the demise of defendant no.3. Aggrieved, the appellant filed the present Appeal from Order No.654 of 1997 before the Bombay High Court. The High Court held that the lower appellate court erred in remanding the suit because the trial court had dismissed the suit on merits after a full trial, not on a preliminary point. The power to remand under Order 41 Rule 23 CPC is limited to cases where the trial court has disposed of the suit on a preliminary point and the decree is reversed in appeal. Since the trial court had already decided the matter on merits, the appellate court could not remand the suit. The High Court allowed the appeal, set aside the remand order, and restored the trial court's decree of dismissal.
Headnote
A) Civil Procedure - Remand under Order 41 Rule 23 CPC - Conditions for Remand - The power to remand under Order 41 Rule 23 CPC can be exercised only when the trial court has disposed of the suit on a preliminary point and the decree is reversed in appeal, or when the appellate court finds that the suit has been disposed of on a preliminary point and the decree is reversed. In the present case, the trial court dismissed the suit after a full trial on merits, and the lower appellate court could not remand the suit merely to allow the appellant to bring legal representatives on record. (Paras 1-2) B) Civil Procedure - Perpetual Injunction - Burden of Proof - In a suit for perpetual injunction, the plaintiff must prove his exclusive ownership and possession of the property. The trial court found that the plaintiff failed to prove exclusive ownership of the well, and the appellate court's remand was not justified as the trial court had already decided the matter on merits. (Paras 3-4)
Issue of Consideration
Whether the lower appellate court was justified in remanding the suit under Order 41 Rule 23 CPC when the trial court had dismissed the suit on merits after a full trial.
Final Decision
The appeal is allowed. The judgment and order dated 20/11/1996 passed by the Additional District Judge at Nashik in Civil Appeal No.268 of 1991 is set aside. The decree of dismissal passed by the trial court in Regular Civil Suit No.52 of 1988 is restored.
Law Points
- Order 41 Rule 23 CPC
- Remand
- Perpetual Injunction
- Exclusive Ownership
- Burden of Proof
