Case Note & Summary
The respondent filed a suit for prohibitory and mandatory injunction claiming ownership of a plot bearing No.10 situated at Khasra No.195/9, T.S.K. No.26 at Katangikala, Dist. Gondia. He alleged that the appellant had encroached upon the plot on 20/09/2007. The appellant resisted the suit, disputing the location and area of the suit plot and claiming that his wife had purchased a different piece of land from Gat No.198/2 and Gat No.199. The trial court dismissed the suit. The respondent appealed to the District Court, which allowed the appeal and remanded the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent. The appellant challenged this remand order in the High Court. The High Court held that the remand was not justified because the trial court had already decided the suit on merits and the appellate court could have decided the appeal on the basis of existing evidence or could have taken additional evidence itself under Order 41 Rule 25 CPC. The High Court set aside the remand order and restored the appeal to the file of the lower appellate court for fresh disposal in accordance with law, directing the appellate court to decide the appeal on merits without remanding the suit.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 and Order 41 Rule 25 CPC - The lower appellate court remanded the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent. The High Court held that the remand was not justified as the trial court had already decided the suit on merits and the appellate court could have decided the appeal on the basis of existing evidence or could have taken additional evidence itself. The order of remand was set aside and the appeal was restored to the file of the lower appellate court for fresh disposal in accordance with law. (Paras 1-10)
Issue of Consideration
Whether the lower appellate court was justified in remanding the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent.
Final Decision
The appeal is allowed. The impugned order dated 11/12/2012 passed by the Principal District Judge, Gondia in RCA No.106/2012 is set aside. The appeal is restored to the file of the lower appellate court for fresh disposal in accordance with law. The lower appellate court is directed to decide the appeal on merits without remanding the suit.
Law Points
- Remand order
- opportunity to lead evidence
- Civil Procedure Code
- Order 41 Rule 23
- Order 41 Rule 25
- property dispute
- encroachment
- injunction
Case Details
2017 LawText (BOM) (06) 151
Appeal Against Order No.52 of 2016
Dr (Smt) Shalini PhansalkarJoshi, J.
Shri I. N. Chaudhari for appellant, Shri J. J. Chandurkar for respondent
Ashwin s/o Odhavjibhai Thakkar
Muktalal @ Murlidhar s/o Budhaji Kawale
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Nature of Litigation
Appeal against order of remand passed by Principal District Judge, Gondia in RCA No.106/2012.
Remedy Sought
Appellant sought setting aside of the remand order and restoration of the appeal to the lower appellate court for fresh disposal.
Filing Reason
The lower appellate court remanded the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent.
Previous Decisions
Trial court dismissed the suit. Lower appellate court allowed the appeal and remanded the suit.
Issues
Whether the lower appellate court was justified in remanding the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent.
Submissions/Arguments
Appellant argued that the remand was not justified as the trial court had already decided the suit on merits and the appellate court could have decided the appeal on the basis of existing evidence or could have taken additional evidence itself.
Respondent supported the remand order.
Ratio Decidendi
The lower appellate court was not justified in remanding the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent, as the trial court had already decided the suit on merits and the appellate court could have decided the appeal on the basis of existing evidence or could have taken additional evidence itself under Order 41 Rule 25 CPC.
Judgment Excerpts
This is an appeal preferred against the order dated 11/12/2012 in RCA No.106/2012 passed by the Principal District Judge, Gondia thereby remanding the suit for extending an opportunity to the appellant therein to lead evidence in order to establish the location of the properties purchased by the appellant and the wife of the respondent.
The lower appellate court was not justified in remanding the suit to the trial court for giving an opportunity to the appellant to lead evidence regarding the location of properties purchased by the appellant and the wife of the respondent, as the trial court had already decided the suit on merits and the appellate court could have decided the appeal on the basis of existing evidence or could have taken additional evidence itself under Order 41 Rule 25 CPC.
Procedural History
Respondent filed suit for prohibitory and mandatory injunction. Trial court dismissed the suit. Respondent appealed to District Court (RCA No.106/2012). District Court allowed the appeal and remanded the suit to trial court. Appellant filed Appeal Against Order No.52 of 2016 in High Court against the remand order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 23, Order 41 Rule 25
