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1979 DIGILAW 137 (MP)

Kalyanchand v. Kanchanbai

1979-03-28

H.G.MISHRA

body1979
Short Note : 1. This defendant revision against order of remand passed by the A.D.J. on 10-8-1973 whereby after setting aside judgment and decree of dismissal of the suit passed by the trial Court on 13-1-1969, the trial Court has been directed to give opportunity to the parties to amend their pleadings and re-try the case after re-framing issues. Held: Admittedly, none of the parties had made any grievance about the pleadings of the other party. None of them desired to amend their pleadings. The Courts have, of course, suo motu power to direct amendment which is exercisable by appellate Court also by virtue of section 153 read with section 107 C.P.C., yet in the facts and circumstances of the present case, there was no case for exercising the same. 2. So far as framing of issue is concerned, learned counsel for the parties have no objection. However, they submit that for this purpose, setting aside of the entire judgment and ordering wholesale remand of the case was not necessary. The legally permissible procedure for the purpose which ought to have been followed was to raise issues on the aforesaid points to retain seisin of the appeal remit them for recording of evidence and finding the trial Court and after receipt thereof, proceed to decide the appeal. 3. Accordingly, the revision is partly allowed. The impugned order so far as it concerns itself with wholesale remand of the case is set aside. Now the learned A.D.J. will retaining seisin of the appeal, remit three issues (as pointed out in para 9 of impugned order) to the trial Court for recording evidence of parties and findings thereon within period of four months from the date of receipt of the record by the trial Court. Revision partly allowed.