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2002 DIGILAW 253 (MP)

NATHURAM RAKHABDAS v. RAMESH CHAND

2002-03-05

S.L.KOCHAR

body2002
S. L. KOCHAR, J. ( 1 ) THESE appeals have been directed against the judgment and decree passed by 4th Addl. District Judge, Mandsour in CRA No. 48-A/2000 and 49-A/2000 decided on 4-9-2001 whereby the judgment and decree passed by First Civil Judge, Class-I Mandsour in Civil Original Suit Nos. 13-A/99 and 14-A/99 dated 20-11-2000 has been set aside and the case has been remanded back to the trial Court for pronouncement of judgment afresh on the basis of pleading and evidence available in the said civil suit independently. ( 2 ) THE civil suit filed by Rameshchandra-respondent vide Civil Suit No. 13-A/99, the trial Court has refused to grant permanent injunction in favour of the appellant whose right of easement in a lane (Galiyara) was obstructed by the appellant and accepted the counter claim filed by appellants/defendants Nathuram restraining the respondents/plaintiffs to use disputed passage and imposed damage of Rs. 5,000/- for removal of channel gate installed by appellant/defendant. Another Civil Suit No. 14-A/99 was filed by late Kishorilal and Munnalal showing them the tenant of Akbar Ali claiming easement right to use the passage (Galiyara ). In this civil suit the relief was sought against the firm Nathuram and its partner in Civil Suit No. 14-A/99 Akbar Ali and Gyarsi Bai were also arrayed as defendants. The appellate Court remanded the case back to trial Court under Order 41, Rule 23-A, CPC for disposal of civil suit with direction that the trial Court after hearing final arguments shall pass the judgment in one day within a month in both the civil suits separately after appreciating the evidence adduced by the parties in the said civil suits and the evidence of one civil suit will not be read and considered in another civil suit. Against this, the appeal has been filed by appellants/defendants. ( 3 ) LEARNED counsel for the appellants has advanced his submission that the such remand by appellate Court is not permissible under Order 41, Rule 23-A, CPC and under Order 41, Rule 24, CPC. The appellate Court itself could determine the case finally by passing separate judgment in both the civil suits after appreciating the evidence adduced by the parties in both the civil suits instead of remanding back the cases for such purposes. The appellate Court itself could determine the case finally by passing separate judgment in both the civil suits after appreciating the evidence adduced by the parties in both the civil suits instead of remanding back the cases for such purposes. He also submitted that under Order 41, Rules 23, 24 and 25, CPC, the appellate Court has not applied the powers of remand envisaged in CPC in its proper perspective and acted beyond jurisdiction whereas the contention of the counsel for the respondent is that the appellate Court has rightly remanded the case back for delivery of separate judgments after appreciating the evidence independently available in both the civil suits. Because without there being any order of amalgamation of both the civil suits and recording of the statements of witnesses of both parties and common recording of statements of witnesses of both the parties in both the civil suits, the trial Court has committed error in passing a common judgment in both the civil suits after reading and appreciating evidence in each other suit. Counsel for the appellants in support of his contention placed reliance on judgments reported in AIR 1988 Orissa 278, Basudev Gonda v. Narasingha Patra, K. Krishna Reddy v. The Special Dy. Collector Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh; AIR 1988 SC 2123 , Bachan Pandey v. Dulhin Janki Devi, AIR 1976 SC 866 , Nedunuri Kameshwaramma v. Sampati Subba Rao; AIR 1963 SC 884 and contended that appellate Court has wrongly placed reliance on a judgment reported in 1974 MPLJ 903 , Suresh Kumar v. State of M. P. having no bearing on facts and law involved in the present case. It is a case relating to the question on valuation of civil suit and because of improper valuation trial Court was not having jurisdiction. This judgment has nothing to do with the power of remand of the appellate Court. Counsel for the appellants has also placed much emphasis on Section 99 of CPC which says no decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. This judgment has nothing to do with the power of remand of the appellate Court. Counsel for the appellants has also placed much emphasis on Section 99 of CPC which says no decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. ( 4 ) HAVING heard the learned counsel for the parties and after perusal of judgment passed by the trial Court as well as appellate Court, this Court is of the firm view that no illegality impropriety or perversity has been committed by the appellate Court while remanding both the civil suits for passing separate judgment by trial Court after hearing both the parties and after appreciating the evidence adduced there in independently. All the judgments relied upon by the counsel for the appellants are not touching and having bearing on the points involved in the present case. None of the decisions are relating to the passing of common judgment in two civil suits. These judgments are dealing with appellate Courts remand power of the case if found some insufficiency in evidence or improper or and incomplete framing of issues etc. ( 5 ) AFTER giving my anxious consideration over the rival contentions of the parties, this Court is of the opinion that the appellate Court has not committed any error of law as well as fact on remanding the case back to the trial Court only for the purpose of separate delivery of judgment after appreciating the evidence of each case independently. The appellate Court has specifically pointed out that in both the civil suits some parties are not common i. e. in Civil Suit No. 14-A/99 Akbar Ali and Gyarsi Bai/defendants are not defendants in Civil Suit No. 13-A/99. The facts and reliefs are not common and while passing the common judgment in both the civil suits the trial Court has decided the issue jointly though the evidence adduced by parties in both the cases are different and the judgment is not showing clearly that the issues were decided on the basis of evidence of which civil suit. The facts and reliefs are not common and while passing the common judgment in both the civil suits the trial Court has decided the issue jointly though the evidence adduced by parties in both the cases are different and the judgment is not showing clearly that the issues were decided on the basis of evidence of which civil suit. The approach of the appellate Court is quite just and legal and as a matter of fact trial Court has no jurisdiction to pass such a judgment and decree in two separate civil suits by common judgment and decree after reading and considering the pleading of parties and evidence adduced in both the civil suits by reading the evidence of one case in another case and therefore the common judgment and decree passed by trial Court in both the Civil Suit Nos. 13-A/99 and 14-A/99 decided on 20th of November, 2000 are without jurisdiction. The provision under Section 99, CPC as well as under Order 41, Rules 23, 24 and 25, CPC will not help the appellants on this issue. The Supreme Court has long back ruled in Mitthulal v. State of M. P. , 1975 Jab LJ 432 as under :- (1) Practice-Case should be decided on the evidence recorded in that case-evidence recorded in another case-cannot be considered either in Civil or Criminal case. The High Court could not decide the appeal before it by taking into account evidence recorded in another case, even though it might be what is closely called a cross case. It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused. In the case in hand the parties have not agreed for common judgment and there is no such order passed by trial Court for treating the evidence of one case in other case. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused. In the case in hand the parties have not agreed for common judgment and there is no such order passed by trial Court for treating the evidence of one case in other case. In the result the appeal filed by the appellants has no merits however it is observed that the trial Court shall not be influenced by any finding on merits given by lower appellate Court touching the merits of the case and deliver the judgment separately after hearing both the parties on one day within one month from the receipt of this order appreciating the evidence of each case independently. With the said observation, the appeal is dismissed and judgment and decree passed by lower appellate Court is upheld. No order as to costs. CC within a week. Appeal dismissed. .