Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 384 (MP)

Kunjan v. Phoola

2017-03-21

VIVEK AGARWAL

body2017
ORDER 1. This miscellaneous appeal has been filed under the provisions of Order 43 rule 1(U) of Code of Civil Procedure against the judgment and decree dated 31.8.2015 passed by the Court of First Additional District Judge to the Additional District Judge, Datia in Civil Appeal No.19A/2012 (Foola v. Kunjan and others). Vide impugned judgment and decree dated 31.8.2015 the first appellate Court has made a whole sale remand of the case for retrial before the trial Court on the ground that the trial Court has not appreciated the evidence lead by the defendant No.1 claiming share in the suit property on twin grounds namely having one third share in her capacity as a legal heir and also on the basis of a Will in favour of her husband Balveer as was executed by father of Balveer being not appreciated by the trial Court properly. 2. The brief facts which are necessary for deciding this miscellaneous appeal, Kunjan-plaintiff had filed a suit for declaration that her title and possession over the suit land be protected. The trial Court had framed 7 issues and had held that the suit land was ancestral property of the husband of the plaintiff namely Balveer. It is also held that after death of Balveer, plaintiff being wife of Balveer is entitled to the share of the property which had come in account of Balveer. It is also held that defendant Foola had approached the Court on the basis of contrary pleadings of her claim being based on ancestral property and also on the basis of some forged Will, not found to be proved and it was held that the defendant Foola was not having any right and entitlement over the property. Then, it was further held that the suit has not been filed for usurping the share of defendant No.1 i.e. daughter of Banmali. It has also come on record that plaintiff had not produced any forged Will of deceased Banmali Ghosi. 3. Then, it was further held that the suit has not been filed for usurping the share of defendant No.1 i.e. daughter of Banmali. It has also come on record that plaintiff had not produced any forged Will of deceased Banmali Ghosi. 3. In view of the aforesaid findings the trial Court had decreed the suit as was filed by the plaintiff and had refused to entertain the counter claim filed by the defendant No.1 on the ground that the counter claim was filed against the co-defendants and not against the plaintiff therefore, such counter claim was not entertainable against the co-defendants as has been held by the Supreme Court in case of Rohit Singh and others v. State of Bihar (now State of Jharkhand), reported in AIR 2007 SC 10 , so also in the case of Narendra Kumar v. Manju Agrawal and others, reported in 2005(2) MPHT 276 , wherein it has been held that defendant can file counter claim against the plaintiff only and his counter claim against the co-defendants is not maintainable. 4. Learned counsel for the appellant submits that such wholesale remand as has been made by the learned first appellate Court is contrary to the provision of law as law laid down in the case of Municipal Corporation Hydrabad v. Sundar Singh, as reported in (2008)8 SCC 485 , wherein the Hon'ble Supreme Court has held that if the decree is passed on a preliminary issue without appreciating the evidence then the remand can be made by the first appellate Court for adducing the evidence on other issues but if there is a decree passed on appreciation of evidence on the various issues framed by the trial Court then the first appellate Court if it has sufficient material in the form of evidence should refrain from remanding the matter and should decide the first appeal on the basis of the material available on record and in case the first appellate Court finds that some issue was not framed or not dealt with by the trial Court then the remand should be made after framing of such specific issues with a direction to the trial Court to take evidence in respect of that issue. Practice of wholesale remand has been deprecated by the Supreme Court on the ground that such wholesale remand only delays settlement of rights of the parties and that is not being the spirit of the law. 5. In view of such decision being brought on record and this Court being convinced on the fact that the trial Court has dealt with the issues in detail and had not passed the decree on any preliminary issue therefore, the order of remand as has been passed by the first appellate Court cannot be sustained and has quashed. Matter is remanded back to the first appellate Court with a direction to decide the first appeal on the basis of the evidence which is available on record.