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2010 DIGILAW 1704 (ALL)

Sri Ram v. Abdul Qavi

2010-05-21

RAJIV SHARMA

body2010
JUDGMENT 1. Heard Counsel for the parties. 2. This appeal has been filed against the judgment and order dated 7.12.85 passed by IX Additional District Judge, Sitapur allowing the Civil Appeal No. 151 of 1982 and setting-aside the judgment and decree dated 2.8.1982 passed by VI Additional Munsif, Sitapur, remanding the case to the trial court for deciding afresh. 3. It has been contented by the Appellant's Counsel that the learned Court below has committed an error in remanding the case on the plea which was not specifically taken, or if taken even then the suit could be decided on the findings that whether the plaintiff is the owner of the plot in dispute or not. The Court below also erred in not considering the fact that unless and until the findings of ownership and limitation recorded in favour of the defendant-appellant are not set aside the the question of plea of non-joinder of parties does not arise. 4. At the out set it is relevant to point out that Respondent No. 1- Abdul Qavi died sometime in the year 2001 at Bareli. Similarly, Respondent No. 2 - Guru Dayal also died during the pendency of the appeal. 5. Whenever it is found for something which is vital and not been decided by the trial court and the same cannot be decided by the appellate court because of lack of proper materials on record, then the remand would be justified. It is relevant to mention that a Court of appeal has a power to remand a case under Order XLI, Rule 23, Rule-23-A and Rule 25 of the Code of Civil Procedure. Rule 23-A provides for a remand by the appellate Court hearing an appeal against the decree, has been inserted in Order XLI of the Code of Civil Procedure by the Amending Act, 1976 and prior to that it was the settled position of law that the Court in an appropriate case would exercise its inherent jurisdiction under Section 151 CPC to pass an order for remand. Thus the appellate Court can exercise the same power to remand under Rule 23-A. In other words all the cases where the matter has been remanded in its entirety, it would be covered by Rules 23 and 23-A of the Code of Civil Procedure. 6. I have gone through the judgment impugned in the present appeal. Thus the appellate Court can exercise the same power to remand under Rule 23-A. In other words all the cases where the matter has been remanded in its entirety, it would be covered by Rules 23 and 23-A of the Code of Civil Procedure. 6. I have gone through the judgment impugned in the present appeal. The Appellate Authority has passed the impugned order after considering all aspects of the matter and has given cogent reasons for remanding the matter. It would be useful to reproduce the reasons recorded by the appellate authority for remand: "As stated above, the defendant no. 1 in para 15 of this W.S. has specifically averred that it is his mother, who is owner of the house and disputed land. Though a specific plea about non-joinder of necessary parties was not taken but the averments in para 15 of the written statement are to the same effect. The Court below ought to have taken notice of the aforesaid plea raised by the defendant no. 1 and should have framed on issue of non-joinder of necessary parties. However, it is not necessary at this stage to frame an issue as to whether the suit is bad for non-joinder of necessary parties or not because in my opinion the presence of all the successors and legal heirs of Bhikhari Lal, deceased father of the defendant no.1 is necessary in the suit for effective and complete adjudication of the matter in issue. It will not be convenient for this Court to make all the legal heirs of Bhikhari Lal party to the suit and after bringing them on record to try the suit hence remand of the case is inevitable. Therefore, the appeal is liable to be allowed and the judgment and decree in question are liable to be set aside." 7. As averred above, in the instant case the appellate court in the impugned judgment has given the reasons as to why re-trial is necessary. The Trial Court has observed that in the written statement though specific plea about non-joinder of necessary parties was not taken but averments in paragraph 15 of the written statement were to the same effect. In paragraph 15 of the written statement it has specifically been averred that the mother was the owner of the house and disputed land. 8. The Trial Court has observed that in the written statement though specific plea about non-joinder of necessary parties was not taken but averments in paragraph 15 of the written statement were to the same effect. In paragraph 15 of the written statement it has specifically been averred that the mother was the owner of the house and disputed land. 8. In view of the above, I find no infirmity in the impugned judgment remanding the matter to the Trial Court and consequently, the appeal is dismissed. Costs easy.