1. Suit for declaration of easementary rights over a public passage and injunction against alleged encroachment. (Para 2 )
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2026 Supreme(Raj) 1098
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI, J.
Godu Ram through his LR's - Appellant
Versus
Bhanwar Singh S/o. Puran Singh - Respondent
S.B. Civil Miscellaneous Appeal No. 2558 of 2012
Decided On : 08-10-2026
Important Points
The court held that 'opportunity' to lead evidence must be 'meaningful and effective,' not merely a count of dates. Procedural rules should facilitate, not defeat, substantive justice, justifying remand when evidence is incomplete due to systemic factors rather than sole party negligence.
Subject
Civil Law - Civil Procedure
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order XXII Rule 10-A - Procedural opportunities for producing evidence - Meaning of "opportunity" in procedural law - Whether a suit involving substantive civil rights should be dismissed on technical grounds when evidence remained incomplete due to factors partially attributable to the court - Remand for fresh adjudication to ensure substantive justice and adherence to the principle of audi alteram partem. (Paras 4, 11, 17, 20)
(B) Meaningful Opportunity - The mere mathematical availability of several dates does not invariably amount to a meaningful opportunity - An opportunity to lead evidence must be understood as an effective opportunity to present the evidence, and not merely an entry in the order-sheet showing that the case was listed for evidence - The judicial process should endeavor to utilize the appearance of witnesses effectively to avoid avoidable hardship to litigants, particularly those from rural areas. (Paras 12, 13, 19)
(C) Scope of Remand - Procedural rules are intended to facilitate adjudication and not to defeat it - Where a suit concerning substantive rights in immovable property reaches final adjudication without evidentiary record, the appellate court must examine whether the resulting adjudication determines the controversy or merely terminates the proceeding because the evidentiary stage remained incomplete - Remand is justified when the delay is not solely attributable to the party and is balanced by allowing both sides to lead evidence. (Paras 17, 18, 16)
Facts of the case:
Plaintiffs instituted a suit seeking declaration of easementary rights over a passage along with permanent and mandatory injunction. During the trial, the plaintiffs' evidence was closed, and the suit was dismissed by the trial Court due to the absence of evidence. The first appellate Court set aside this judgment and remanded the matter for fresh adjudication, granting the plaintiffs limited further opportunities to lead evidence. The defendant appealed against this remand order, contending that the plaintiffs had been afforded sufficient opportunities and the litigation should not be reopened.
Findings of Court:
The Court found that the recording of evidence was hindered by various factors, including paucity of Court time, absence of the Presiding Officer, and the transfer of the case, and not solely by the negligence of the plaintiffs. Since the plaintiffs had already placed affidavits of examination-in-chief on record and the defendant had also not led evidence, the remand was a balanced approach to ensure the case is decided on merits rather than procedural defaults.
Issues: Whether the first appellate Court was justified in remanding the case for fresh adjudication to provide a "meaningful opportunity" to lead evidence, despite the trial Court having previously closed the evidence of the plaintiffs.
Ratio Decidendi: Procedural discipline must be balanced with the fundamental requirement that a party has a fair and effective opportunity to establish its case. An "opportunity" must be meaningful and effective, not just a count of dates. In disputes involving substantive rights in immovable property, remanding for evidence is appropriate to prevent a failure of justice, provided the remand is not open-ended and includes safeguards like costs and strict timelines.
Result: Appeal dismissed.
(B) Meaningful Opportunity - The mere mathematical availability of several dates does not invariably amount to a meaningful opportunity - An opportunity to lead evidence must be understood as an effective opportunity to present the evidence, and not merely an entry in the order-sheet showing that the case was listed for evidence - The judicial process should endeavor to utilize the appearance of witnesses effectively to avoid avoidable hardship to litigants, particularly those from rural areas. (Paras 12, 13, 19)
(C) Scope of Remand - Procedural rules are intended to facilitate adjudication and not to defeat it - Where a suit concerning substantive rights in immovable property reaches final adjudication without evidentiary record, the appellate court must examine whether the resulting adjudication determines the controversy or merely terminates the proceeding because the evidentiary stage remained incomplete - Remand is justified when the delay is not solely attributable to the party and is balanced by allowing both sides to lead evidence. (Paras 17, 18, 16)
Facts of the case:
Plaintiffs instituted a suit seeking declaration of easementary rights over a passage along with permanent and mandatory injunction. During the trial, the plaintiffs' evidence was closed, and the suit was dismissed by the trial Court due to the absence of evidence. The first appellate Court set aside this judgment and remanded the matter for fresh adjudication, granting the plaintiffs limited further opportunities to lead evidence. The defendant appealed against this remand order, contending that the plaintiffs had been afforded sufficient opportunities and the litigation should not be reopened.
Findings of Court:
The Court found that the recording of evidence was hindered by various factors, including paucity of Court time, absence of the Presiding Officer, and the transfer of the case, and not solely by the negligence of the plaintiffs. Since the plaintiffs had already placed affidavits of examination-in-chief on record and the defendant had also not led evidence, the remand was a balanced approach to ensure the case is decided on merits rather than procedural defaults.
Issues: Whether the first appellate Court was justified in remanding the case for fresh adjudication to provide a "meaningful opportunity" to lead evidence, despite the trial Court having previously closed the evidence of the plaintiffs.
Ratio Decidendi: Procedural discipline must be balanced with the fundamental requirement that a party has a fair and effective opportunity to establish its case. An "opportunity" must be meaningful and effective, not just a count of dates. In disputes involving substantive rights in immovable property, remanding for evidence is appropriate to prevent a failure of justice, provided the remand is not open-ended and includes safeguards like costs and strict timelines.
Result: Appeal dismissed.
Legal Category Hierarchy
- civil procedure
- property law
Advocates Appeared:
For the Appellant : Mr. G.R. Poonia,Sr. Adv. assisted by Mr. Madan Lal.
For the Respondent: Mr. Javed Hussain.
For the Appellant : Mr. G.R. Poonia,Sr. Adv. assisted by Mr. Madan Lal.
For the Respondent: Mr. Javed Hussain.
Table of Contents
2. Plaintiffs claimed long user and encroachment; defendant disputed passage existence, asserted ownership, and filed a counter-claim. (Para 2 )
3. The appellate court correctly examined the quality of opportunities, not just their number, before remanding. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 )
4. An opportunity to lead evidence must be effective, not merely listed dates, considering practical realities of litigation. (Para 11 , 12 , 20 )
5. Appeal dismissed; first appellate court's remand order affirmed with directions for expeditious disposal and cost safeguards. (Para 26 , 27 )
6. What constitutes a meaningful opportunity for a party to lead evidence in a civil suit?
A meaningful opportunity is an effective chance to present evidence, not merely multiple court dates. The court must consider if delays were attributable to the litigant or other circumstances. (Para 11 , 12 , 20 )
7. Under what circumstances is an appellate court justified in remanding a case for fresh adjudication after the trial court closed evidence?
Remand is justified when the trial court's closure of evidence was based on procedural default rather than a party's persistent inaction, and where the appellate court finds the opportunities provided were not truly effective. (Para 4 , 17 , 18 , 21 )
8. What is the appropriate balance between enforcing procedural discipline and ensuring substantive justice?
Courts must balance preventing dilatory tactics with ensuring fair opportunity. Where substantive rights are involved, limited indulgence may be granted, especially if compensated by costs and strict timelines. (Para 16 , 20 , 21 , 22 )
JUDGMENT :
Farjand Ali, J.
Grievance:
1. The present appeal has been preferred by the defendant-appellant being aggrieved of the judgment and decree dated 06.10.2012 passed by the learned Additional District & Sessions Judge, Parbatsar in Civil Regular First Appeal No.4/2012, whereby the learned appellate Court, while partly allowing the appeal preferred by the plaintiff-respondents against the judgment and decree dated 02.02.2012 passed by the learned Civil Judge (Senior Division), Makrana in Civil Suit No.25/2004 (41/2011), has set aside the judgment and decree of the learned trial Court and remanded the matter for fresh adjudication after affording an opportunity to the parties to lead their respective evidence. The principal grievance of the appellant is that, despite the plaintiffs having been afforded repeated opportunities by the learned trial Court, they failed to produce their evidence within the time granted to them, whereafter their evidence was closed and, no evidence having been led by either side, the suit was dismissed and the counter-claim was also not pressed. It is contended that the learned first appellate Court, instead of affirming the well-reasoned judgment of the learned trial Court, has erroneously exercised its discretion in directing a remand, thereby reopening a litigation which had remained pending for several years.
Facts:
2. The facts, in brief, are that the plaintiffs instituted a civil suit seeking declaration of easementary rights over a purported 12-feet public passage situated on the western side of their residential house in village Sunthali, along with mandatory and permanent injunction against the defendant, alleging that the said passage had been used by the plaintiffs and their family for about 100 years and that, on 13.04.2004, the defendant commenced construction by encroaching upon the passage, thereby narrowing the access to the plaintiffs' house. The defendant-appellant contested the suit by disputing the existence of the alleged public passage on the western side, asserting that an alternate way existed on the eastern side of the plaintiffs' house and further maintaining that the construction was being raised upon land in his possession and ownership from the time of his forefathers. It was also pleaded that, if the land in question belonged to the Gram Panchayat, the suit was bad for non-joinder of the necessary party. The defendant further preferred a counter-claim asserting his right, title and possession over the land shown in the site plan and sought permanent injunction against interference by the plaintiffs. On the basis of the pleadings, eight issues were framed, including issues relating to the alleged 100-year use of the passage, encroachment, acquisition of easementary rights, availability of an alternative passage, non-joinder of the Gram Panchayat, alleged encroachment by another person, entitlement of the defendant to relief on the counter-claim and the relief clause. During the course of the proceedings, the plaintiffs' evidence was closed by order dated 07.12.2011. No evidence was thereafter led by the defendant and the counter-claim was ultimately not pressed. The learned trial Court, therefore, dismissed the suit by judgment and decree dated 02.02.2012. The plaintiffs preferred an appeal, which came to be partly allowed by the learned first appellate Court vide judgment dated 06.10.2012, whereby the judgment and decree of the trial Court were set aside and the matter was remanded with a direction to afford the plaintiffs two opportunities to lead evidence, thereafter to permit the defendant to lead evidence, to permit cross-examination of the witnesses and, after hearing the parties, to decide the suit afresh. Hence, the present appeal.
3. I have heard learned counsel for the appellant and learned counsel appearing for the respondents and have carefully perused the record, including the orders passed by the learned trial Court and the judgment rendered by the learned fi
