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Madhya Pradesh High Court · body

2018 DIGILAW 110 (MP)

Jagnnath v. Karuna

2018-01-25

ROHIT ARYA

body2018
ORDER : 1. This appeal filed by defendants no.1 and 2 under Order 43 Rule 1(u) CPC has been preferred against the order of remand dated 19.05.2017 passed by the District Judge, Alirajpur in Civil Appeal No.19-A/2016. On appeal preferred by the plaintiffs against the judgment and decree dated 14.07.2016 passed by the Civil Judge, Class-II, Alirajpur in Civil Suit No.11-A/2016 the same has been set aside and remanded the suit back to the trial Court for trial. 2. In the light of the judgment passed by Hon’ble Supreme Court in the case of Syeda Rahimunnisa Vs. Malan Bi (Dead) by L.Rs. (2016) 10 SCC 315 and by this Court in the cases of Murarilal Vs. Ram Kumar Ojha ILR (2014) MP 2162, Shivdayal Vs. Meena Bai ILR (2014) MP 2174, wherein the scope, limit, extent and dimension of jurisdiction of the appellate Court under Order 41 Rules 23 and 23-A CPC are laid down requiring the appellate authority to first address on justifiability of reversing the findings of the Court below and ascertaining the requirement for remand thereafter shall exercise jurisdiction under Order 41 Rules 23 and 23-A CPC. 3. In the instant case, a suit for declaration and injunction filed by the plaintiffs was dismissed. On appeal at the instance of the plaintiffs, the appellate Court chose to remand the suit without reversing the findings setting aside the judgment and decree passed by the trial Court on merits; only on the premise that further facts are required to be elucidated by way of spot inspection through Court Commissioner under Order 26 Rule 9 CPC for just decision of the suit. 4. In the opinion of this Court, the appellate Court appears to be oblivious of the statutory requirement under Order 41 Rules 23 and 23-A of CPC in the context of power of remand. In the light of the judgment of Hon’ble Supreme Court in the case of Syeda Rahimunnisa (Supra) and of this Court in the cases of Murarilal (Supra) and Shivdayal (Supra), the impugned order of remand cannot be sustained in the eyes of law. Accordingly, the impugned order dated 19.05.2017 passed in Civil Appeal No.19-A/2016 is set aside with direction to the appellate Court to decide the appeal on merits, in accordance with law. C.C. as per rules.