Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 1041 (MP)

BISARTI BAL v. RATNAWALI

2005-09-30

K.K.LAHOTI

body2005
( 1 ) APPELLANTS have challenged judgment and decree dated 31/3/2005 by IInd Additional District Judge (Fast track Court), Katni in Civil Appeal No. 4-A of 2004 by which the appellate Court has remanded the matter to the trial Court. ( 2 ) FACTS of the case are that respondent smt. Ratnawali filed a suit for declaration and permanent injunction. In the said suit, appellants filed a counter claim but had not paid Court fee thereon. The plaintiff/respondent because of the non-payment of the court fee had not filed any written statement to the counter claim as it was not entertained by the trial Court. The trial Court framed issues and after recording evidence, at the time of the decision of the suit, found that the appellants have not paid court fee on the counter claim and asked the appellants to pay court fee on the counter claim. The appellants paid court fee and thereafter, the suit was decided without extending any opportunity to the plaintiff to file written statement in respect of the counter claim. The trial Court dismissed the suit but decreed the counter claim. Against judgment and decree passed by the trial Court, plaintiff preferred a first Appeal. The first appellate court found that after payment of the court fee, counter claim was competent and the plaintiff was entitled to file written statement in the case. On this ground appellate court remanded the case directing the trial court to give an opportunity to the plaintiff to file written statement and thereafter, to decide the matter in accordance with law. This order is under challenge in this appeal. ( 3 ) LEARNED counsel for appellant assailed aforesaid order on following grounds :- (1) That, there was no necessity to remand the case. The plaintiff was well aware from the date of filing of the written statement that the appellants have filed a counter claim in the case but has not chosen to file any reply to the counter claim. In these circumstances, no opportunity ought to have been extended to the plaintiff to file reply to the counter claim. (2) That, even if such remand was necessary then it ought to have been a limited remand in respect of the decision of the counter claim but the appellate Court erred in remanding the case by setting aside the judgment and decree. (2) That, even if such remand was necessary then it ought to have been a limited remand in respect of the decision of the counter claim but the appellate Court erred in remanding the case by setting aside the judgment and decree. There was no reason to set aside aforesaid judgment and decree. ( 4 ) LEARNED counsel appearing for the respondent supported the order passed by the lower appellate Court and submits that as soon as court fee was paid, respondent/plaintiff was entitled to file written statement to the counter claim and thereafter, trial court has to frame issues on the basis of pleadings and both parties are entitled to lead evidence in respect of their claims. In these circumstances, remand was necessary. Until and unless Court fee is paid in the matter, counter claim was not competent and the appellate Court rightly remanded the matter. ( 5 ) TO consider the rival condition of the parties in this case, factual position is not disputed. The appellants filed a counter claim/cross suit under Order 8 Rule 6-A c. P. C. This counter claim requires court fee and until and unless court fee is paid, counter claim itself was defective. The trial court after filing of the written statement has not extended any opportunity to file written statement to counter claim as required under Rule 6-G of Order 8, C. P. C. which was mandatory requirement under the law after entertaining the counter claim in the matter. As soon as counter claim was entertained after payment of the court fee, the trial Court ought to have extended such opportunity to the plaintiff/respondent to file written statement. But such opportunity was not allowed to the plaintiff/respondent. In these circumstances, trial Court committed gross error in not extending such opportunity to the plaintiff/respondent which has been rectified by the appellate Court. Now plaintiff/respondent shall get an opportunity to file reply to the counter claim. On the basis of pleadings, trial Court has to frame issues, if necessary, and thereafter extending opportunity to the parties to lead evidence, has to decide the case afresh. ( 6 ) NOW second contention of the appellants may be seen. The appellants submit that in these circumstances, the appellate court ought to have remanded the matter to the extent of decision on counter claim and wholesale remand ought not to have been made. ( 6 ) NOW second contention of the appellants may be seen. The appellants submit that in these circumstances, the appellate court ought to have remanded the matter to the extent of decision on counter claim and wholesale remand ought not to have been made. It is submitted that aforesaid remand ought to have been made under order 41 Rule 25 C. P. C. Aforesaid provision is applicable where the trial Court has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits. But the facts of the present case are entirely different. Now after entertaining counter claim, the trial Court shall extend opportunity to the plaintiff to file written statement and thereafter, the trial Court has to frame issues on the pleadings of the parties. The appellants have sought declaration of title and possession over the property which is to be tried by the trial Court in accordance with law. In these circumstances provision of Order 41, Rule 25 C. P. C. shall not be applicable. When the appellate Court found it appropriate to remand the case to try the counter suit of the appellants then the plaintiff was also entitled to lead evidence in this regard. In these circumstances, it was necessary for the appellate Court to remand the entire case. In case entire matter is not remanded, there may be conflicting finding in the matter after recording the evidence. To meet out the exigency, it was necessary to remand the matter in toto. In these circumstances, the appellate Court has rightly remanded the case to the trial Court to try afresh after filing written statement by the plaintiff/respondent in respect of the cross-objection/cross-suit of the appellants. In the impugned order, there is no error of law. This appeal is without merit. It is dismissed with no order as to costs. Appeal dismissed. .