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2018 DIGILAW 1026 (MP)

Harveer Singh v. Raghuveer

2018-12-17

J.K.MAHESHWARI

body2018
ORDER 1. This order shall govern the disposal of M.A. No. 492/2007 and M.A. No. 638/2008 as both the appeals arise out of a common judgment. 2. Being aggrieved by the judgment dated 7.4.2007 passed in Civil Appeal No. 25-A/2005 by the District Judge, Guna, these appeals have been filed by the plaintiff as well as by the defendants. M.A. No. 492/2007 is filed by the plaintiff, against the judgment of remand while M.A. No.638/2007 is filed by the defendants against the same judgment. It is not in dispute that during the pendency of the Appeal, cross objection was filed by the defendan+ts before Lower Appellate Court and to support the cross objection, an application under Order 41 rule 22 CPC was also filed. 3. The contention of the plaintiff is that the judgment of remand in wholesale in a suit claiming right of pre-emption, dismissed by trial Court, in the appeal filed by him challenging the said judgment, merely on filing an application of defendants under Order 41 rule 27 of CPC is not permissible. In fact, on the basis of material so available, the District Judge ought to have decided appeal and cross objection filed by the defendants on merit, therefore, the order of remand is not permissible. On the other hand, the defendants in their appeal contends that the Lower Appellate Court erred in directing whole sale remand and the Court must take recourse of law as specified under Order 41 rule 28 of the C.P.C. on allowing the application under Order 41 rule 27 C.P.C. Relying upon the judgment in the case of Uttaradi Mutt v. Raghavendra Swamy Mutt ( AIR 2018 SC 4796 ), it is contended by the defendants that the remand in whole sale is wrong and the Lower Appellate Court may be directed to take recourse as permissible under Order 41 rule 28 of CP.C. 4. After having heard the learned counsel appearing on behalf of both the parties and on perusal of the judgment and decree, it is evident that the Lwer Appellate Court has considered the pleadings of the parties and the evidence also. The Court made some observations in the order in favour of the plaintiff and thereafter by referring the application filed by the defendants allowed the same and remanded the matter back to trial Court. The Court made some observations in the order in favour of the plaintiff and thereafter by referring the application filed by the defendants allowed the same and remanded the matter back to trial Court. The Lower Appellate Court has not considered the contingencies as specified under Order 41 rule 23 and 23-A of the CPC prior to directing the remand. 5. After perusal of the facts of the present case, as per the pleadings and the evidence brought on record, in my considered opinion, in the manner in which the remand has been directed by the Court in whole sale is not permissible, therefore, the judgment of remand is hereby set aside. 6. Now, the question arises whether after setting aside of the judgment of the lower appellate Court, the parties may be left free to raise their respective objections on the applications under Order 41 rule 27 of the C.P.C. and to argue their respective cases on merit or the contention as advanced by the counsel for the defendants relying upon the judgment of the Supreme Court in the case of Uttaradi Mutt (supra) may be accepted. 7. During the course of arguments it is contended by the plaintiff that the applications under Order 41 rule 27 cannot be allowed and the documents are not at all relevant for adjudication of the issue involved in the case. 8. On the other hand, learned counsel for the defendants submits that because the applications under Order 41 rule 27 of C.P.C. have been allowed, therefore, recourse of Order 41 rule 28 CPC must be directed to be taken. 9. Once this Court is of the opinion that the manner in which the remand is directed, is not permissible looking to the principles as narrated under Order 41 rule 23 and 23- A of the C.P.C. and the judgment of remand stand set aside, however the application under Order 41 rule 27, if any, filed by any of the parties is required to be heard at the time of hearing of that appeal. However, relying upon the judgment of Supreme Court in the case of Uttaradi Mutt (supra), direction can not be issued as argued by the defendants to take recourse of Order 41 rule 28 of C.P.C. at this stage. 10. However, relying upon the judgment of Supreme Court in the case of Uttaradi Mutt (supra), direction can not be issued as argued by the defendants to take recourse of Order 41 rule 28 of C.P.C. at this stage. 10. In view of the foregoing discussion, it is suffice to observe that both the appeals filed by the plaintiffs and the defendants stand disposed of. The judgment of lower appellate Court stands set aside. The first appeal filed by the plaintiff in which the cross objection of the defendants is there be restored to file and the said appeal be decided in accordance with law. While deciding the appeal, the application under Order 41 rule 27 filed by the defendants may be taken into consideration and the plaintiff would be at liberty to raise all the legal objections as permissible to him subject to hearing the other side. 11. In view of the above observations, both the appeals stand disposed of. 12. Parties present in the Court are directed to appear before the District Judge, Guna on 25.2.2019. By that time the record of the Lower Appellate Court be transmitted to the District Judge concerned. D.D. Bansal for appellant in M.A. No. 492/2007 and for respondents in M.A. No. 638/2007; N.K. Gupta with Ravi Gupta for appellants in M.A. No. 638/2007 and for respondents in M.A. No. 492/2007.