The appellate court must consider substantive merits alongside procedural compliance when remanding a case, avoiding remand solely on technical grounds.

JUDGMENT :

Rajnish Kumar, J.

1. The instant appeal under Order XLIII Rule 1(U) of the Civil Procedure Code, 1908 (herein-after referred as C.P.C.) has been filed against the Judgment and order dated 04.01.2022 passed in Civil Appeal No.110 of 2011; Hari Bux Singh and others vs. Prakash Narain and others by the Additional District and Sessions Judge, Court No.1, Sultanpur, by means of which the appeal has been allowed and the Judgment and decree passed by the trial court has been set aside and the matter has been remanded back to the trial court for fresh decision of the suit on merits.

2. Learned counsel for the plaintiff-appellants submitted that the defendant-respondents were not present when the case was called for hearing on the date fixed, therefore, the appeal could not have been decided on merit by the lower appellate court and it should have been dismissed under Order XLI Rule 17 of C.P.C. He further submitted that the lower appellate court has decided the civil appeal in violation of Order XLI Rule 31 of C.P.C. without framing points for determination and recording the findings thereon.

3. He further submitted that the plea of limitation taken by the defendant-respondents was in the knowledge of the parties and accordingly the evidence was adduced which shows that the suit was within limitation, therefore, merely because any issue was not framed in regard to limitation it cannot be a ground for setting aside the Judgment and decree passed by the trial court and remanding the matter. It was further submitted that no objection to the commission report was filed by the defendant-respondents, therefore, there was no dispute in regard to the commission report and if court would have been dissatisfied with the report of the commissioner, it could have directed further inquiry in the matter or examined the commissioner, but it was not done, therefore, it can also not be a ground for remand. Thus submission was that the impugned Judgment and order is not sustainable in the eyes of law and it is liable to be set aside. He relied on the following case laws:

i. Nagubai Ammal and others versus B. Shama Rao and others, 1956 AIR (Supreme Court) 593

ii. Arya Pratinidhi Sabha and others versus Arvind Niketan Charthawal and another , 1979 All. LJ 1220

iii. Abdur Rahman and others versus Athifa Begum and others, (1996) 9 Supreme Court Cases 62,

iv. Sayeda Akhtar versus Abdul Ahad, (2003) 7 Supreme Court Cases 52,

v. Malluru Mallappa (dead) through legal representatives versus Kuruvathappa and others, (2020) 4 Supreme Court Cases 313,

vi. Smt. Urmila Devi versus Shyam Sunder and others, 2021 (151) RD 73,

vii. Sathyanath and another versus Sarojamani, (2022) 7 Supreme Court Cases 644,

viii. Janki Prasad versus Sanjay Kumar and others, 2022 (1) ADJ 312 (LB),

ix. Benny D’Souza and ors. Versus Melvin D’Souza & Ors. 2023 LiveLaw (SC) 1032.

4. Per contra, learned counsel for the defendant-respondents submitted that the lower appellate court has allowed the appeal and the appeal has been finally decided on the insistence of the plaintiff-appellants, therefore, the plea that in absence of learned counsel for the plaintiff-respondents, the appeal should have been dismissed under Order XLI Rule 17 of C.P.C. is not tenable. Even otherwise he is not an aggrieved person, once an appeal has been decided and allowed by the lower appellate court because the appeal was filed by the defendant-respondents and they have no grievance. The defendant-respondents may have aggrieved person to challenge it, if it would have been dismissed. It was further submitted that the plaintiff-appellants have been heard by lower appellate court and their arguments have been considered and no objection to the commission report was filed. However, portion of possession during pendency of the suit is not identifiable.

5. On the basis of above, the submission of learned counsel for the defendant-respondents was that the impugned Judgment and order passed by the lower appellate court