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2007 DIGILAW 2250 (ALL)

CHATURGHUN v. DHANPATI RAI

2007-08-30

PANKAJ MITHAL

body2007
PANKAJ MITHAL, J. Heard Sri C. K. Rai, holding brief of Sri Faujdar Rai learned counsel for the appellant. Respondent No. 1 was issued notice to engage another counsel. He was served with the notice and the sen rice was held to be sufficient but even then no one has put in appearance: on his behalf. Respondents No. 2 and 3 are duly represented but no one turned up on their behalf despite the list being revised. 2. The plaintiff-respondent No. 1 had filed Original Suit No. 386 of 1971 for permanent mandatory injunction restraining the defendant appellant from interfering in his right to use the nali shown by letters A, B, S, D, in the plaint map and for mandatory injunction directing the defendant-appellant to remove the roots and branches of the trees from his grove land shown by letters Y, R, L, W, in the plaint map. The suit after contest was partly decreed by the Court of first instance vide judgment and order dated 22. 5. 1981. It was decreed in respect of the nali but was dismissed with regard to grove land shown by letters Y, R, L, W. 3. Not being satisfied by the judgment, order and decree of the Court of first instance, the plaintiff- respondent No. 1 preferred Civil Appeal No. 421 of 1981. The defendant-appellant filed cross-objections and assailed the part of the decree in respect of nali. The lower appellate court vide judgment and order dated 8. 11. 1982 has set aside the judgment, order and decree of the Court of first instance and has remanded the matter for decision afresh in the light of the observations made in the judgment. 4. It is against the judgment, order and decree of the lower appellate court dated 8. 11. 1982 that the defendant appellant has filed this first appeal from order under Order XLIII, Rule 1 (u), C. P. C. 5. Learned counsel for the appellant has submitted that lower appellate court was not justified in setting aside the decree passed by the court of first instance and to remand the matter. The order of remand amounts to giving an opportunity to the plaintiff-respondent No. 1 to fill in the lacuna in the evidence. 6. I have perused the judgment and order of the lower appellate court. The order of remand amounts to giving an opportunity to the plaintiff-respondent No. 1 to fill in the lacuna in the evidence. 6. I have perused the judgment and order of the lower appellate court. The lower appellate court in remanding the matter has observed that the plaintiff did not get any site plan prepared so as to prove the existence of the nali and the tubewell. It also states that the plaintiff has not pleaded the basis on which he is claiming right over the nali nor he has alleged and proved that the said nali was left out in the consolidation proceedings to enable him to irrigate his fields. The survey map 60 Ka2 has also not been made part of the decree and position of the nali is also not clear from the same. In view of the above observations the lower appellate court remanded the matter with the categorical direction to the lower court to give opportunity to the plaintiff-respondent No. 1 to file the map of the consolidation proceedings so as to prove the existence of the nali and further to clarify the dimensions, area and number of the public land, if any, left out in the consolidation proceedings for the purposes of the said nali. 7. The above observations on which the matter has been remanded clearly establish that the plaintiff- respondent No. 1 was not able to prove his case and as such was not entitled to any decree. However, the lower appellate court despite the above findings that the plaintiff respondent No. 1 has not been able to prove his case, instead of dismissing the appeal has allowed it after setting aside the judgment and order of the lower court and has remanded the matter. The purpose of remand is to enable the plaintiff-respondent No. 1 to adduce sufficient evidence to fill in the lacunas which have been pointed out by the lower appellate court. 8. The remand of the matter for the purposes of adducing sufficient evidence so as to fill up the lacunas is not permissible under law. The matter can only be remanded if the conditions provided under Order XLI, Rules 23 and 25 are satisfied. 9. 8. The remand of the matter for the purposes of adducing sufficient evidence so as to fill up the lacunas is not permissible under law. The matter can only be remanded if the conditions provided under Order XLI, Rules 23 and 25 are satisfied. 9. In my opinion none of the conditions enumerated under Order XLI, Rules 23 and 25 exists in the present case inasmuch as neither the suit was disposed of by the lower court on a preliminary point nor it has omitted to frame or try any issue or question of fact which is essential for the decision of the suit upon merits. The order of remand is, therefore based on extraneous reasons other than those specified under Order XIA Rules 23 and 25, C. P. C. Therefore, the order of remand passed by the lower appellate court is patently illegal and has been passed without jurisdiction. 10. In view of the above, the impugned judgment, order and decree dated 8. 11. 1982 passed by the Addl. District Judge, in Civil Appeal No. 421 of 1981, Dhanpat Rai v. Murli and two others, is set aside with the direction to the lower appellate court to decide the appeal on merits in accordance with the law as expeditiously as possible. The appeal is allowed accordingly. Parties to bear their own cost. .