Order on Board

17/12/2024

1. This appeal is filed against the judgment dated 24.07.2019 in Civil Appeal No. 28-A/2018 passed by First Additional, District Judge, Durg (C.G.), whereby learned First Appellate Court has remanded back the case in terms of order 41 Rule 23 of Code of Civil Procedure, 1908 Digitally signed by SHAYNA (hereinafter referred as “C.P.C.”)

KADRI

2. Facts relevant for disposal of this appeal are that, respondent No. 1-

plaintiff has filed suit for declaration of title, eviction and permanent injunction on the grounds pleaded therein. Written statement was also submitted by appellant/defendant denying the entire claim of plaintiff in the suit. Learned trial Court, based on the pleadings made, has formulated five issues for consideration and dismissed the suit while deciding the primary issue framed with respect to title of plaintiff to be not proved and on the issue of injunction to be not proved. Learned trial Court, taking note of the provision of Section 34 of the Specific Relief Act, 1963 (hereinafter referred as “the Act of 1963”), has observed that the possession is of defendant and no further relief has been sought for possession which was required to be in the facts of the case and therefore, no declaration can be ordered and suit is dismissed on the ground of maintainability also. The order of learned trial Court dated 09.05.2018 was put to challenge in an appeal under Section 96 of C.P.C. which was decided by impugned order dated 24.07.2019. Learned First Appellate Court, upon considering submission made, has recorded a finding that in the plaint, plaintiff has pleaded that he was evicted and is not in possession of suit property and even thereafter, plaintiff has not sought any relief for possession nor valued the suit. It further considered that argument raised on behalf of appellant/plaintiff that as there is a pleading with respect to possession in the suit, and in evidence, prayed for possession, of which learned trial Court had not given proper consideration and recorded a finding that in absence of specific relief, Court fee affixed therein for the said relief, relief of possession cannot be granted, however, learned First Appellate Court has observed that finding recorded with respect to issue No. 1 that relief of declaration of title cannot be granted in absence of further relief in view of Section 34 of the Act of 1963 is not based on the proper appreciation of evidence and is not sustainable and observed that in the facts of the case, plaintiff is required to be given an opportunity to make such prayer / pleading in the plaint, to pay Court fees and considering that only because non-seeking of further relief, plaint is going to be dismissed, case is remanded back under Order 41 Rule 23 of C.P.C. with a direction to appellant / plaintiff to make such averment in the plaint, relief, and to value suit accordingly, to frame additional issue, to record further evidence and to decide the case afresh.

3. Learned counsel for appellant would submit that impugned order passed by learned Appellate Court is per sey illegal, arbitrary and bad in law. He contended that learned trial Court, based on the pleadings and evidence available on record, has rightly came to conclusion that plaintiff had not sought any relief of possession and had taken one of the ground for dismissal in view of specific provision under Section 34 of the Act of 1963. Said finding of learned trial Court was also affirmed in the observation made by First Appellate Court, however, only considering that there is no proper appreciation of evidence, has passed the order of remand of entire case for fresh trial which is impermissible under law. Learned First Appellate Court has not come to the conclusion that finding recorded by learned trial Court is perverse to evidence available or pleading or is contrary to the pleadings made in the plaint or written statement. He submits that remand of case to trial Court for fresh trial can only be