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Jharkhand High Court · body

2009 DIGILAW 624 (JHR)

Satya Bhama Devi v. Bibani Devi

2009-04-28

JAYA ROY

body2009
O R D E R JUDGMENT Heard the learned counsel of the appellants and the learned counsel for the respondents at the admission stage. Since the appeal is of the year 2003 and can be decided on a short point. I intend to decide it at this stage. 2. This appeal is directed against the judgment and decree dated 25.10.2002 passed by Sri P.P. Pandey, the learned Additional District Judge, Fast Track Court No.-V, Deoghar in Title Appeal No.21 of 2001 /08 of 2002, whereby and whereunder, the said learned court allowed the appeal and reversed the judgment and decree dated 4.10.2001 and 17.10.2001 passed by Sri Subodh Kumar, Sub-Judge II, Deoghar in T (P) Suit No. 20 of 1998 and remanded the suit before the trial court. 3. That the appellants filed a suit for setting aside the decree of T (P) Suit No.21 of 1993 of the court of Sub-Judge I, Deoghar and declaring that the same is null and void and not binding on plaintiffs up to the intent of the suit land. Further relief was sought for is for declaration of the title of the plaintiffs over the suit land with permanent injunction. The said suit was decreed and against the aforementioned decree, the respondents (Defendants in the trial Court) filed the aforesaid appeal i.e. T.A.No.21 of 2001 / 08 of 2002. 4. The learned appellate court below after taking into consideration and the submissions made on behalf of the parties, came to the conclusion that it is necessary to frame further issue with respect to permanent injunction and without framing an issue and discussing the settle principle of law in granting or refusing injunction, has decreed the relief for permanent injunction in favour of the plaintiffs which is bad and not in accordance with law. I have no doubt in my mind that the learned Sub-Judge I, Deoghar has committed serious illegality to grant decree of permanent injunction against the defendants in respect of the suit lands. 5. I have no doubt in my mind that the learned Sub-Judge I, Deoghar has committed serious illegality to grant decree of permanent injunction against the defendants in respect of the suit lands. 5. Evidently, therefore, the question which arose for consideration before the learned court of appeal below was that without framing an issue with respect to the permanent injunction, the finding was not given on this point and as such, the judgment and decree passed by the learned Sub-Judge II, Deoghar was bad in law and he set aside the judgment and decree passed by the said Sub-Judge and remanded the case before him and directed to frame the issues afresh on the point of relief claimed and after hearing the parties, decide the case in accordance with law. 6. The learned counsel appearing for the appellants submitted that in that view of the matter, the order of remand could not have been made in term of Order 41 Rule 23 or Order 41 Rule 23A of the Code of Civil Procedure inasmuch as evidently the learned court of appeal below has exercised its power under Order 41 Rule 25 of the Code of Civil Procedure. 7. The submission of the learned counsel for the appellants appears to be correct. In terms of Order 41 Rule 25 of C.P.C., a court of appeal below may frame an issue or issues and direct the learned trial court to take evidence thereupon and further direct him to return the evidences on record together with its findings and the reasons thereof within a time fixed by the appellate court. Therefore, the learned court of appeal is to retain with him the appeal itself and to dispose of the same after receipt of the findings of the learned trial court on additional issues framed by it. 8. In this view of the matter, I am of the view that the impugned judgment and decree passed by the appellate court below can not be sustained. 9. In the result, this appeal is allowed and the judgment and decree passed by the learned court below is set aside and the learned court of appeal below is hereby directed to hear the parties and pass afresh order after taking into consideration all the facts and circumstances of the case. However, in the facts and circumstances of this case, there will be no order as to cost.