Case Note & Summary
The appellant, Sitabai, filed an appeal against the judgment and order dated 5.7.2014 passed by the learned Principal District Judge, Gondia in Regular Civil Appeal No.50 of 2013. The appellate court had remanded the proceedings to the trial court with a direction to frame a specific issue regarding the validity of customary divorce in the Teli community, as pleaded by the plaintiff in paragraph 3A of the plaint. The appellant contended that the trial court had already framed a comprehensive issue: 'Does the plaintiff prove that she is legally wedded wife of deceased Khushal and a member of joint Hindu family of Pandurang?' which was sufficient to cover the question of customary divorce. The appellant argued that the parties were aware of the issue and had led evidence on it, and therefore the appellate court should not have interfered. The appellant relied on the Supreme Court judgment in Kannam (Dead) by L.Rs. and anr. vs. V.S. Pandurangam (Dead) by L.Rs. and Ors., AIR 2008 SC 951, particularly paragraphs 11 and 12, to support the proposition that even if no specific issue is framed, if the parties are aware and have led evidence, the appellate court should not interfere. The High Court, after hearing both sides, found merit in the appellant's submission. The court observed that the issue framed by the trial court was comprehensive and specific enough to include the validity of customary divorce. The court noted that the appellate court's direction to frame a separate issue was unnecessary and amounted to an improper exercise of remand power. Consequently, the High Court allowed the appeal, set aside the impugned order of remand, and directed the trial court to proceed with the suit in accordance with law, considering the evidence already on record.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 CPC - Appellate court's power to remand - Where a comprehensive issue covering the subject matter is already framed and parties have led evidence, the appellate court should not remand for framing a specific issue. The trial court had framed the issue 'Does the plaintiff prove that she is legally wedded wife of deceased Khushal and a member of joint Hindu family of Pandurang?' which was comprehensive enough to include the validity of customary divorce. The appellate court's order of remand was set aside. (Paras 2-4) B) Customary Divorce - Validity - Teli Community - Issue framing - The validity of customary divorce in Teli community can be considered under the broader issue of whether the plaintiff is the legally wedded wife. No separate specific issue is necessary if the parties are aware and have led evidence. (Paras 2-4)
Issue of Consideration
Whether the appellate court was justified in remanding the suit for framing a specific issue on validity of customary divorce when a comprehensive issue regarding legal wedded wife status was already framed and evidence led.
Final Decision
The appeal is allowed. The impugned judgment and order dated 5.7.2014 passed by the learned Principal District Judge, Gondia in Regular Civil Appeal No.50 of 2013 is set aside. The trial court is directed to proceed with the suit in accordance with law, considering the evidence already on record.
Law Points
- Appellate court should not interfere with trial court findings if parties were aware of the issue and led evidence
- even if no specific issue framed
- Customary divorce validity can be subsumed under broader issue of legal wedded wife status
