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2019 DIGILAW 470 (MP)

Dhankunwarbai v. Ramkunwarbai @ Amolbai

2019-07-02

VISHAL MISHRA

body2019
JUDGMENT 1. The present appeal has been filed under Order 43 rule1(u) of CPC arising out of the judgment and decree of remand dated 24.1.2019 passed by the Additional District Judge Chanderi, District Ashok Nagar in Civil Appeal No. 10- A/2017 reversing the judgment and decree dated 24.11.2015 passed by the 2nd Civil Judge, Class-II, Chanderi, District Ashoknagar in Civil Suit No. 118-A/2015. 2. It is being argued by learned counsel for the appellant that a Civil Suit was declaration of 1/4th share and permanent injunction in the suit land and house was filed by the plaintiff claiming herself to be daughter of Amar Singh. She has prayed for the relief that sale deed dated 8.7.2009 executed by the defendant No. 1 Rampa @ Ramprasad in favour of defendant No. 2-4 be declared as null and void against the rights of the plaintiff. The defendants gave their appearance and has filed written statement denying the plaint allegations and contended that the plaintiff is not the daughter of Amar Singh nor plaintiff No. 2 Rupiyabai is wife of Amar Singh nor they are successors of Amar Singh. Plaintiff Ramkunwarbai is daughter of Rupabai wife of Girwar and the plaintiffs have also received the property of Giriwar. They have denied all the allegations in the plaint and has prayed for dismissal of the suit. 3. The learned trial Court after framing of issues and recording of evidence and after hearing the argument advanced by both the parties dismissed the Civil Suit vide its judgment and decree dated 24.11.2015. A Civil Appeal was preferred by Ramkunwarbai before the lower Appellate Court and at the time of final arguments two applications, one under Order 1 rule 10 CPC and another under Order 6 rule 17 CPC were filed which were opposed by the defendants by filing the reply. The learned lower appellate Court after hearing the parties has allowed the applications as well as appeal filed by the respondent No.1/plaintiff and has set aside the judgment and decree passed by the trial Court dated 24.11.2015 and the matter has been remanded back as a whole to the trial Court for deciding the suit afresh on merits, vide judgment and decree dated 24.1.2019. It is argued by learned counsel for the appellant that learned lower appellant Court has erred in passing the impugned judgment and decree of remand without taking into consideration the law applicable to the present facts and circumstances of the case. The matter has been remanded without considering the merits of the case and without reviewing the findings of judgment and decree passed by the trial Court and without considering the question of title and possession the learned lower appellate Court has only considered the defect of impleadment of necessary parties in the suit. The first appellate Court has not taken note of the fact that even after imleadment of some of proposed persons as parties to the suit, no benefit could have been extended to the plaintiff looking to the nature of the case pleaded by the plaintiff. Issue No. 4 was framed by the learned trial Court on the objection being taken by the defendants in the written statement regarding the fact that plaintiff has not impleaded the proper persons as parties to the suit. The plaintiffs despite their being specific objection and in issue has not bothered to implead proper parties. The trial Court has dismissed the civil suit on several grounds including that of not impleading the necessary parties. The learned lower appellate Court was bound to consider all the relevant grounds and was bound to set aside the findings given by the trial Court declaring them to be unreasonable and should have observed that it is a fit case wherein retrial is necessary and thereafter the remand order can be passed but without considering the aforesaid aspect of the case out rightly the order impunged has been passed without setting aside all the findings given by the trial Court. 4. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Municipal Corporation Hyderabad v. Sunder Singh, reported in (2008) 8 SCC 485 and also in case of H.P. Vedavyasachar v. Shivashankara and anr. reported in (2009) 8 SCC 231 that the learned appellate Court has committed an error remanding the case in totality. He has further argued that the learned Appellate Court has committed an error in allowing the application under Order 1 rule 10 of CPC and under Order 6 rule 17 of CPC. reported in (2009) 8 SCC 231 that the learned appellate Court has committed an error remanding the case in totality. He has further argued that the learned Appellate Court has committed an error in allowing the application under Order 1 rule 10 of CPC and under Order 6 rule 17 of CPC. As after death of the defendant No. 1-Rampa, the plaintiff was within the rights to implead the same persons as legal heirs but she has opted delete the name of defendant No. 1-Rampa, now they cannot be added subsequently and the suit itself had abated automatically. 5. He has further drawn attention of this Court to the findings given by the learned trial Court in paragraph 11 wherein it has been held that property is not a joint property and was not received by the defendant No. 1 from his father Chunna. The paternity of Ramkunarbai was also challenged by the defendants saying that she is not daughter of Amar Singh and learned trial Court in paragraph-14 has categorically held that it is also not prove that the plaintiff Rupiyabhai @ Rupabai is wife of Amar Singh. He has drawn attention of this Court in paragraph 19 and 20 of the judgment passed by the trial Court, wherein it was held that the plaintiff/respondent No. 1 has failed to establish 1/4th share. He has further argued that prior to passing of remand order the appellant Court ought to have taken care of the provision contained in Order 41 rule 23 or 23A of CPC which are mandatory in nature but the learned Appellate Court has failed to do so and only on the basis of the fact of mis-joinder of parties by allowing the application under Order 1 rule 10 CPC has directed for remand of the case which is per se illegal, therefore, the present appeal has been filed. 6. Per contra, the counsel appearing on behalf of the respondents has supported the judgment passed by the learned Appellate Court and contended that the learned Appellate Court has taken care of the fact that when there is a defect of mis-joinder of parties in the Civil Suit then that can be rectified in the interest of justice and an application which was filed under Order 1 rule 10 of CPC wast ought to have been allowed. Allowing the application and directed for impleadment of the parties in the proceedings and with an intention to give them a fair hearing, the matter has been remanded by the Appellate Court. He has further argued that there is no illegality in the judgment and decree passed by the learned Appellant Court. The plaintiff has ample opportunity to defend his case before the trial Court. 7. Heard Learned counsel for the parties and perused the record. 8. Before entering into the merits of the case the provisions of Order 41 rule 23 of CPC are required to be looked into. Order 41 rule 23 of the Code reads thus : "23. Remand of case by appellate Court.- Where the Court from whose decree and appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, and may further directed what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recovered during the original trial shall, subject all just exceptions, be evidence during the trial after remand." 9. From the perusal of aforesaid case, it is seen that the scope of Order 41 rule 23 is extremely limited. The suit should have been decided on preliminary issue which is primary requirement of Order 41 rule 23. The learned appellate Court should have arrived at the finding that retrial was necessary and the decree was liable to be reversed. The order of remand cannot be passed on ipse dixit of the Court. The Hon'ble Supreme Court in the case of Municipal Corporation (supra) has dealt with the aforesaid analogy. The distinction must be borne in mind between diverse power of the appellate Court to pass an order of remand. The scope of remand in terms of Order 41 rules 23 is extremely limited. The suit was not decided on preliminary issue therefore, the Order 41 rule 23 was not applicable. On what basis the secondary evidence was allowed to be led is not clear. The scope of remand in terms of Order 41 rules 23 is extremely limited. The suit was not decided on preliminary issue therefore, the Order 41 rule 23 was not applicable. On what basis the secondary evidence was allowed to be led is not clear. The appellate Court should have arrived at a finding that the decree is liable to be reversed, therefore, the condition precedent should be satisfied prior to applying Order 41 rule 23. 10. In the present case, the learned trial Court has framed five issues and has given a specific finding on all the issues. Issue No. 4 : Øekad okn iz'u fu"d"kZ 4 D;k okn esa i{kdkjks ds vla;kstu dk nks"k gSAa i{kdkjks ds vla;kstu dk nks"k gSA 11. Paragraph 21 of the judgment passed by the trial Court says that Pyarelal and Deshraj are not being impleaded as parties to the proceedings by the plaintiff. Daughter of Rampa was not made a party to the proceedings. It was pointed out that there are three sons of Ram Prasad but they were not made parties to the proceedings. As per the plaintiff himself the disputed property is joint family property, therefore, all the LRs of Rampa should have been made party to the proceedings. There was no application filed by the plaintiff for impleading them as party to the proceedings. The plaintiff/appellant has filed an appeal wherein application under Order 1 rule 10 CPC and Order 6 rule 17 CPC were filed. Counsel for the appellant has argued that the plaintiff himself has chosen not to make him a party to the proceedings and has chosen to delete the name of the Rampa from the cause title of the plaint and once the matter has been dealt with by the learned trial Court and has attained finality then no such application could have been filed for impleading LRs of Rampa at the appellate stage. The plaintiff is estopped from his own conduct. The aforesaid analogy has not been taken into consideration by the appellate Court and only on the pretext that appellate Court has having powers for direction for impleadment of parties the application is allowed and plaintiff was directed to implead LRs of Rampa and in such a condition when they were directed to be impleaded as a party to the proceedings then they should also be provided opportunity of hearing. Considering the same the learned appellate Court has remanded the matter as a whole. The learned appellate Court has also allowed an application under Order 6 rule 17 CPC. The amendment which has been sought were directed to be incorporated and as the matter was remanded as a whole the respondent will have ample opportunity for raising the defence. But the fact remains that whether the provisions of Order 41 rule 23 of CPC are applicable in the present fact and circumstance of the case. It is not a case where the civil suit is being decided on the preliminary issues. The basic requirement for exercising the provisions of Order 41 rule 23 are that the civil suit must have been decided on a preliminary issue and all the findings given by the learned trial Court are required to be reversed by the appellate Court and a finding has to be recorded regarding reversal and the appellate Court was required to hold that a retrial in the matter is required, only on recording of such a finding the matter could have been remanded back to the trial Court for rehearing. In the present case, the appellate Court has remanded the matter on the pretext of mis-joinder of parties holding that LRs of Rampa @ Ram Prasad were not impleaded as party to the proceedings therefore, the same has effected the rights of LRs. Considering the same the matter was remanded back but the learned Appellate Court has not observed that the findings given by the trial Court on all the issues were perverse and the matter required a rehearing/retrial. The learned appellate Court has not considered the fact that the matter is not being decided on a preliminary issue. 12. Hence, considering the law laid down by Hon'ble Supreme Court in the case of Municipal Corporation (supra) and the provisions of Order 41 rule 23 CPC, the order passed by appellate Court appears to be defective and is hereby set aside. The matter is remanded back to the learned appellate Court for rehearing and decision afresh taking into consideration the law laid down by the Hon'ble Supreme Court in the aforesaid case. The appeal is hereby allowed.