The main legal point established in the judgment is that the appellate court should address vital points and proceed with the case on merits, rather than remanding the case for a fresh trial, in accordance with the provisions of Order 41 Rule 23 and Rule 23A of C.P.C.

JUDGMENT

G.D. Saxena, J.

1. This order shall govern the disposal of aforesaid two appeals (Misc. Appeal No. 260/2012 and Misc. Appeal No. 261/2012). These appeals under Section 104 read with Order 43 Rule 1(u) of C.P.C. through inter-pleader have been submitted against a common order dated 24th January 2012 in Civil Appeal No. 26/2009 and 27/2009 of the Additional District Judge, Gohad, district Bhind, allowing thereby an application preferred by the appellant under Order XXII Rule 10 C.P.C. and allowing her to be impleaded as a defendant while making remand of the entire case to the learned trial court for afresh decision, after setting aside the impugned judgment and decree dated 31st August 2009. Being aggrieved, the appellant has come to this court with certain reliefs.

2. Bare facts necessary for determination of this controversy can now be stated. The plaintiffs/respondents No. 1 to 3 instituted a suit against defendants/respondents No. 4, 5 and 6 (in Misc. Appeal No. 260/12) for declaration of title and permanent injunction over the agricultural land comprised in Survey Nos. 33, 51, 62, 430, 432, 434, 1004, 1007, 1008 and 1210, total area 3.36 hector, situated in village Achaya Tehsil Gohad, district Bhind which was subject matter of the suit. The said disputed land earlier was owned by Gangaram, father of the plaintiffs and Tej Singh. After death of Gangaram, plaintiffs and Tej Singh became the owners of the land with equal share of 1/4th in the suit property. The suit land was partitioned in the year 1994 and pursuant thereto the mutation proceedings took place. It was alleged that by the defendant No. 1 that she was not given share as per the agreement made between her father and the plaintiff Harvilas. On the contrary, plaintiff Harvilas pleads that the father of defendant No. 1 being Karta of the family made partition of the property which was not proper and he played fraud with his rights. In such circumstances, both the parties filed separate suits against each other. However, the learned trial Judge by the impugned judgment dated 31st August, 2009 did not find the partition proved between the parties contesting the suit, hence, left the parties to proceed for getting their partition before the competent court. Being aggrieved, both the parties filed two separate appeals and challenged the above impugned findings. During hearing, the appellant- intervener filed the application under Order XXII Rule 10 of C.P.C. with a prayer that she be joined with seller Savitridevi in pending appeals. Said prayer was allowed but in a different manner. The appellant was allowed to be impleaded as defendant in the appeals but instead of deciding the appeals on merits, the lower appellate court remanded the case back to the trial court for taking afresh decision after affording opportunity to the appellant to file written statement and produce evidence.

3. Learned counsel for the appellant invites attention to impugned order dated 24/1/12 to demonstrate that it is in fact a remand order and as such provision of order XLIII Rule 1(u) C.P.C. will apply and appeal against such an order is the only remedy. It is further submitted that the first appellate court instead of deciding the case on merits, passed the impugned order. Accordingly, it is prayed that by allowing the appeals the order of remand may be set aside and the appellate court may be directed to implead the appellant in the appeals filed by the parties with seller Savitridevi and thereafter same may be heard on merits. In support of the submissions he has relied upon the judgments reported AIR 1953 SC 837 in this respect in the cases of P. Purushottam Reddy & another Vs. Pratap Steels Ltd. (2002) 5 SCC 686, H.P. Vedavyas Sachar Vs. Shivashabkar & another (2009) 8 SCC 231 as well as of this court in the case of Dr. Arvind Vs Mannalal, 2009(1) MPLJ 620.

4. In the case of P. Purushottam Reddy (supra), the Hon. Apex court while dealing with the matter has observed as follows:-

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