Order On Board

22.10.2024 With the consent of learned counsel for the parties, the matter is heard finally.

1. This appeal has been filed under Order 43 Rule 1 (u) of the Civil Procedure Code (CPC) against the order (mentioned as judgment) dated 18.11.2021 passed by the Additional District Judge, Surajpur in Civil Appeal No.04-A/2018, whereby, the judgment and decree dated 31.08.2018 was set- aside and the Civil Suit No.138-A/2011 was remanded back to the trial Court i.e. Civil Judge, Class-I, Pratapur, Surajpur for retrial after taking additional evidence on records and after affording opportunity of consequential amendment in the suit.

2. The relevant facts of the case are that the plaintiffs (respondents No.1 and 2 herein) filed a suit for declaration of title and permanent injunction against appellants/defendants No.4 & 5 in respect of suit property and also to declare the sale deed dated 06.09.2009 to be null & void on the ground that the suit property is self acquired property and defendants No.2 and 3 have wrongly mutated their names in the revenue records and sold the property in favour of defendants No.4 and 5.

3. The trial Court after evaluating evidence available on record reached to the conclusion that the plaintiffs have failed to establish that subject property is self acquired property of late Ramkishun (father of appellant No.1 and respondent No.1 & 2) and thereby dismissed the suit. Against the judgment of the trial Court, the plaintiffs preferred an appeal. During the pendency of appeal the plaintiffs have filed a copy of sale deed by way of application under Order 41 Rule 27 along with application under Order 6 Rule 17 of the CPC. Learned appellate Court found that said document and amendment are necessary in the suit to resolve the controversy between the parties and allowed both the applications and quashed the entire judgment passed by the trial Court and remitted the matter back to the trial Court to decide the case afresh after affording opportunity to adduce additional evidence and of consequential amendment in the suit.

4. Learned counsel for the appellants/defendants submits that the respondents/plaintiffs have filed the Suit for declaration, permanent injunction and to declare the said sale deed null & void which was executed on 06.09.2009 in favour of appellant No.4 and 5. He submits that it is not disputed that earlier the subject property was purchased by the father of respondents No.1 and 2 and appellant No.1, however, the appellants have specifically claimed that the subject property was purchased from joint property in the name of Nawal Sai, therefore, to decide the suit, the subject document of the sale deed is not so essential. Therefore, order of remand made by the first appellate Court is unnecessary. Even if the Appellate Court found that admission of additional evidence is necessary in the interest of justice, instead of wholesale remand of the case, the trial Court ought to have been directed to take such evidence on record and send it to the Appellate Court to decide the Appeal in accordance with law in view of Order 41 Rule 25 of the CPC.

5. Learned counsel for the respondents/plaintiffs would also not dispute the aforesaid settled legal proposition.

6. Heard learned counsel for the parties at length and perused the documents annexed with the petition carefully.

7. In the matter of Udaya Economics Housing & Construction Limited v.

Smt. Bhula Bai and Others1, while allowing the application under Order 41 Rule 27 of the CPC, the scope of remand order by the Lower Appellate Court has been discussed and it was held that wholesale remand of entire case for fresh trial is unnecessary.

8. Further, in the matter of Jawahar Lal (Dead) through L.Rs. and Another v. Champa Devi and Another2, while dealing with the similar issue, the following was held in para 6 to 10, which read as under:-

“6. Order 41 Rule 23 of the Civil Procedure Code, 1908 (hereinafter called ‘the CPC’) empowers the Appellate Court to