Case Note & Summary
The appellant, Ashok Magaswargiya Sah. Bhadekaru Malki Griha Nirman Sanstha Ltd, a co-operative society, filed a suit (R.C.S.No.52/2000) against respondents for encroachment on suit land. The trial court framed five issues and, after evidence, found respondent no.1 to be an encroacher and rejected his claim of membership. The respondents appealed (R.C.A.No.117/2007). The lower Appellate Court (District Judge-1, Beed) remanded the matter to the trial court for fresh decision after framing additional issues, allowing applications for additional evidence subject to costs. The appellant challenged this remand order in the High Court. The High Court observed that the lower Appellate Court did not properly consider the trial court's findings and evidence, and instead of deciding the appeal on merits, it remanded the case without specific grounds. The High Court allowed the appeal, set aside the remand order, and directed the lower Appellate Court to decide the appeal afresh on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Lower Appellate Court's Power - The lower Appellate Court remanded the suit for fresh decision after framing additional issues, but the High Court held that the Appellate Court ought to have decided the appeal on merits based on existing evidence and findings, and could not remand without proper grounds. (Paras 1-3)
Issue of Consideration
Whether the lower Appellate Court was justified in remanding the matter to the trial court for framing additional issues and fresh decision without properly considering the evidence and findings already recorded by the trial court.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 8.10.2012 passed by the District Judge-1, Beed in R.C.A.No.117/2007, and directed the lower Appellate Court to decide the appeal afresh on its own merits in accordance with law. The civil application also stands disposed of.
Law Points
- Appellate court's power to remand
- Order 41 Rule 23 CPC
- framing of additional issues
- jurisdiction of appellate court
- scope of remand
Case Details
2013 LawText (BOM) (07) 22
Appeal From Order No. 4 of 2013 with CA/451/2013
Mr. Khandare N.B. for Petitioners, Mr. Patil Milind M. (Beedkar) for R/1
Ashok Magaswargiya Sah. Bhadekaru Malki Griha Nirman Sanstha Ltd Beed thr Chairman Prabhakar Balaji Shringare
Suresh Sahebrao Kamble, Hamid s/o Gafoor, Chhabu s/o Dagdu Parve (Deleted)
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Nature of Litigation
Appeal against remand order in a civil suit for encroachment on land belonging to a co-operative society.
Remedy Sought
The appellant (original plaintiff) sought to set aside the remand order passed by the lower Appellate Court and to have the appeal decided on merits.
Filing Reason
The lower Appellate Court remanded the matter to the trial court for framing additional issues and fresh decision, which the appellant contended was without jurisdiction and improper.
Previous Decisions
The trial court (R.C.S.No.52/2000) framed five issues and after evidence found respondent no.1 to be an encroacher and rejected his claim of membership. The lower Appellate Court (R.C.A.No.117/2007) remanded the matter for fresh decision after framing additional issues.
Issues
Whether the lower Appellate Court was justified in remanding the matter to the trial court for framing additional issues and fresh decision without properly considering the evidence and findings already recorded by the trial court.
Submissions/Arguments
Appellant argued that the trial court had framed five issues and extensively dealt with them, allowing parties to lead evidence, and recorded findings including that respondent no.1 was an encroacher. The lower Appellate Court ought to have decided the appeal on merits instead of remanding without specific grounds.
Respondent's arguments are not mentioned in the judgment text.
Ratio Decidendi
The lower Appellate Court, while hearing an appeal against a trial court's judgment, must decide the appeal on merits based on the evidence and findings recorded, and cannot remand the matter for framing additional issues without proper grounds or without considering the existing record.
Judgment Excerpts
This appeal from order takes an exception to the judgment and order passed by the District Judge-1 Beed in R.C.A.No.117/2007 dated 8.10.2012.
By way of the impugned judgment and order, the lower Appellate Court remanded the matter to the trial court for deciding it a fresh by framing appropriate issues...
Learned counsel appearing for the appellant herein invited my attention to the issues framed by the Trial Court and submitted that, Trial Court has framed as many as 5 issues for its consideration/determination and extensively dealt with the said issues thereby allowing the parties to lead evidence.
Procedural History
The original plaintiff (appellant) filed R.C.S.No.52/2000 in the trial court. The trial court framed five issues and after evidence passed a judgment. The defendants (respondents) appealed to the District Court, Beed, which was registered as R.C.A.No.117/2007. The lower Appellate Court (District Judge-1) passed the impugned order on 8.10.2012 remanding the matter for fresh decision. The appellant then filed the present Appeal From Order No. 4 of 2013 in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 41 Rule 23
