Order On Board

21/10/2024

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

2. This Appeal arises out of order (wrongly mentioned as judgment) dated

20.07.2022 in Civil Appeal No.H-44-A/2016 passed by the Additional District Judge, Fast Track Court, Mahasamund (C.G.), remanding the case for retrial to the trial Court upon reception of additional evidence rendered in the Appeal.

3. Briefly stated facts of the case are that respondent No.6 (Smt. Dulari Bai), respondent No.4 (Sarojini), respondent No.5 (Meena Bai) & Late Shri Santosh Sahu filed a Civil Suit against the appellants/defendants for permanent injunction, making an averment inter alia that they are holding title in their own names and are in possession of the subject property i.e. Khasra No.863, ad measuring area 0.33 hectare at Village Khairjhitti, Patwari Halka No.7, Revenue Circle Pateva, Tehsil & District Mahasamund (C.G.). It has been alleged that from the past 3 years, the defendants are forcefully harvesting the crops planted in the subject land. In their written statement, the appellants/defendants had stated that defendant No.2 has purchased the said property from one Dular Sahu by way of a registered sale deed dated 19.08.2009 and thereby, they are in possession of the subject property and are having title over it based on the said sale deed. Learned trial Court framed as many as 6 issues. Though, while dealing with issue No.1, the trial Court reached to a conclusion that the respondents/plaintiffs failed to prove their title on the subject property, but subsequently it held that they are in possession of the subject property. Ultimately, the suit was dismissed on the ground that no injunction can be granted against a person, who is having a better title. Against the said order of the trial Court, the respondents/plaintiffs preferred an Appeal. During the proceeding in the Appeal, an interlocutory application under Order 41 Rule 27 of the CPC was filed and to demonstrate the title on the subject land, along with the said application, certain certified copies of the revenue entries were also filed. The Appellate Court allowed the said application and after setting aside the judgment and decree passed by the trial Court, remitted the matter to the trial Court to decide the same afresh after affording opportunity to adduce additional evidence to the parties.

4. Learned counsel for the appellants/defendants submits that the respondents/plaintiffs have filed the Suit for permanent injunction and to decide the said Suit, the remand order 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.

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 remand the case, which reads as follows:

“23. Remand of case by Appellate Court.—

Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the App