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2013 DIGILAW 957 (RAJ)

Gajanand v. Municipal Board, Sawai Madhopur

2013-05-09

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present appeal has been filed by the appellant-plaintiff under Order 43, Rule 1 (u) of CPC challenging the order dated 2.5.2005 passed by the District Judge, Sawai Madhopur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal Nos. 28/96, whereby the appellate court while allowing the said appeal has set aside the judgment and decree dated 22.5.96 passed by the Civil Judge (SD), Sawai Madhopur (hereinafter referred to as 'the trial court') in Civil Suit No. 48/92(287/83). 2. The short facts giving rise to the present appeal are that the appellant-plaintiff had filed the suit against the respondent-Municipal Board in respect of the suit plot. The said suit was resisted by the respondent-defendant by filing the written statement. The trial court framed the issues from the pleadings of the parties. It appears that thereafter the appellant-plaintiff submitted an application under Order 12, Rule 6 of CPC, relying upon the statements made by the defendant-Board in the written statement and requested the court to decree the suit. The trial court decreed the suit of the appellant-plaintiff vide the judgment and decree dated 22.5.96 restraining the defendant-Board from causing any obstruction to the plaintiff in the possession of the suit property and from transferring or selling the same to any third parties. Being aggrieved by the said judgment and decree, the defendant-Municipal Board had filed the appeal being No. 28/96 before the appellate court. The appellate court vide the judgment and order dated 2.5.05 set aside the decree passed by the trial court and remanded the case to the trial court for deciding the same afresh after hearing all the necessary parties in the suit. Being aggrieved by the said order, the present appeal has been filed. 3. It has been sought to be submitted by the learned senior counsel for the appellant that the order passed by the appellate court does not fall within the purview of Order 41, Rule 23 or Rule 23A of CPC and that the appellate court has directed the trial court to hear all the necessary parties, though no such plea was raised before the trial court by any third party. He also submitted that the order passed by the appellate court is vague and ambiguous so far as giving of opportunity of hearing to be given to the necessary parties, was concerned. 4. The learned counsel Mr. He also submitted that the order passed by the appellate court is vague and ambiguous so far as giving of opportunity of hearing to be given to the necessary parties, was concerned. 4. The learned counsel Mr. B.K. Sharma, for the respondent on the other hand submitted that there was no admission made by the respondent either in the written statement or in any other documents admitting unequivocally the claim of the appellant and, therefore, the decree passed by the trial court was liable to be set aside. According to him, the appellate court, after considering the issues involved in the appeal had rightly remanded the case to the trial court for deciding the case afresh after giving an opportunity of hearing to all the parties to the suit. 5. Having regard to the submissions made by the learned counsels for the parties and to the judgment and decree passed by the trial court as well as the judgment and order passed by the appellate court, it clearly appears that the trial court had passed the decree under Order 12, Rule 6 of CPC though the defendant-Board had not made any admission qua the claim of plaintiff either in the written statement or in any other document. It is needless to say that as per the legal settled position, the decree under Order 12, Rule 6 of CPC could be passed only when the admission is made by the defendants either in the pleadings or otherwise, in clear and unequivocal terms. So far as the decree passed by the trial court in the present case is concerned, it transpires that no such admission admitting the claim of the plaintiff was made by the defendant and, therefore, no decree could have been passed under Order 12, Rule 6 of CPC. The appellate court, therefore, has rightly set aside the said decree passed by the trial court and remanded the case to the trial court for deciding the same afresh. 6. There is some substance in the apprehension expressed by the learned senior counsel Mr. Agrawal for the appellant that the appellate court while remanding the case has directed the trial court to give opportunity of hearing to all necessary parties, though no third party had come forward before the trial court or appellate court. 6. There is some substance in the apprehension expressed by the learned senior counsel Mr. Agrawal for the appellant that the appellate court while remanding the case has directed the trial court to give opportunity of hearing to all necessary parties, though no third party had come forward before the trial court or appellate court. Hence, it shall be construed that the appellate court has remanded the case to the trial court for deciding afresh after giving the opportunity of hearing to the parties to the suit. 7. In that view of the matter, the court does not find any merit in the present appeal and, therefore, the same deserves to be dismissed. The appeal being devoid of merits is dismissed.Appeal Dismissed. *******