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2021 Supreme(Bom) 1187
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Shrikant D. Kulkarni, J.
Balkrishna Padmakar Joshi - Appellant
Versus
Superintending Archeologist - Respondent
Appeal From Order No. 17 of 2021; Civil Application No. 5707 of 2021
Decided On : 26-07-2021
S.P. Brahme, Advocate, M.S. Kulkarni, Advocate, S.G. Talhar, Advocate
The power of remand should be sparingly exercised, and the appellate court should make every effort to dispose of the case itself when possible.
Headnote:
Ancient Monument Act - Dispute over residential block near ancient monument - Act Section 3, Order 41 Rule 23, 24, 25, 26 of the C.P.C. - The court discussed the provisions of Order 41 Rule 23, 24, 25, and 26 of the C.P.C. regarding remand of cases by the appellate Court. The court emphasized that the power of remand should be sparingly exercised and that the appellate court should make every effort to dispose of the case itself when possible. The court also highlighted the importance of framing necessary issues and determining the suit without unnecessary remand.
Fact of the Case:
The appellant challenged a notice to remove a residential block near an ancient monument. The trial court decreed the suit in favor of the appellant, but the District Judge remanded the suit for fresh decision due to the absence of an issue on the validity of the notice.
Finding of the Court:
The court found that the remand by the District Judge was erroneous and not warranted, emphasizing that the lower appellate court had the power to determine the suit without unnecessary remand.
Issues: The main issue was the validity of the notice issued by the Archaeological Survey Department, and whether the remand by the District Judge was justified.
Ratio Decidendi: The court held that the power of remand should be sparingly exercised and that the lower appellate court had the power to determine the suit without unnecessary remand.
Final Decision: The appeal was allowed, the impugned judgment and decree were quashed and set aside, and the proceedings were restored to the file of the District Court for fresh decision by the Principal District Judge.
JUDGMENT
Shrikant D Kulkarni, J. - With the consent of both sides, this appeal is taken up for final disposal at admission stage.
Factual matrix:
2. Being dissatisfied by the judgment and decree passed in Regular Civil Appeal No. 143 of 2015 by the learned District Judge-5, Jalgaon, dated 25.02.2021, thereby remanded Regular Civil Suit No.377 of 2005 to the trial Court for fresh decision, the appellant/original plaintiff has preferred this appeal.
3. The subject matter is a residential block consisting of two rooms with toilet and bathroom, situated at a distance of 30 feet away from the ancient monument of Chandikadevi Temple at Patnadevi, Tq. Chalisgaon, District Jalgaon. According to the appellant, the suit house is in existence since 19th century. Forefathers of the appellant has received the suit house by way of Sanad, issued by the Collector, Khandesh in the year 1861. The appellant is performing Archana and services to the deity and looking after the management of the suit premises and getting yearly allowances for the same. Respondent No.1 had issued notification under section 3 of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as 'the Act' for the sake of convenience).
4. According to the respondents, the suit property is situated within the protected zone of the monument. The respondents issued notice to the appellant dated 27.09.2005 and called upon the appellant to remove the suit house since it is within the protected and/or prohibited area. The appellant challenged the notice by filing suit with two fold reliefs declaration and injunction.
5. The respondents had contested the suit. Both the parties have produced oral as well as documentary piece of evidence in support of their stand. The learned trial judge was pleased to decree the suit and declared that the notice issued by the respondents is invalid.
6. Being aggrieved by the judgment and decree passed by the trial Court, 3rd Jt. Civil Judge, Senior Division, Jalgaon in Regular Civil Suit No. 377/2005, the respondents have preferred an appeal bearing Regular Civil Appeal No.143/2015 before the District Court, Jalgaon. After considering the arguments advanced on behalf of both sides, the learned District Judge was pleased to allow the appeal partly and remanded the suit to the trial court for decision afresh with direction to frame one additional issue regarding validity of the notice.
7. In the above background, the appellant/original plaintiff is before this Court.
8. Heard Mr. S.P. Brahme, the learned counsel for the appellant and Mr. A. G. Talhar, learned Assistant Solicitor General for the respondents. Perused the judgment and decree passed in Regular Civil Appeal No.143/2015 by the learned District Judge-5, Jalgaon, as well as judgment and decree passed in Regular Civil Suit No. 377/2005 by the learned 3rd Jt. Civil Judge, Senior Division, Jalgaon.
Submissions of learned Advocate for the Appellant:-
9. Mr. S. P. Brahme, the learned Advocate for the appellant submitted that the order passed by the District Judge, Jalgaon remanding the suit to the trial court for decision afresh is contrary to the settled legal position. He submitted that the suit cannot be remanded for fresh decision to the trial court only because one issue on the point of validity of the notice is not framed. The District Court, being the first appellate court and last fact finding Court, could have framed the issue on the point of notice and answered the same on the basis of evidence available on record. The learned counsel submitted that both parties have produced their oral and documentary piece of evidence before the trial Court. The trial court has framed issues. Both the parties were aware about the issues framed by the trial Court. The respondents did not apply for recasting of issues. The suit went on for trial and it came to be decreed.
10. Mr Brahme, the learned counsel submitted that in view of the provisions of Order 41 Rule 24 of the Civil
