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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE AMIT SETH MISC. PETITION No. 1644 of 2026 NARENDRA KUMAR JAIN Versus VIRENDRA KUMAR JAIN AND OTHERS Appearance:

Shri Sameer Kumar Shrivastava - learned Counsel for petitioner-

defendant No.1.

Shri Anchit Jain- learned Counsel for respondent No.1- plaintiff.

Reserved on :- 08-09-2026 Delivered on :- 19-09-2026 ORDER In terms of order dated 08.09.2026, the service of notice on respondent No.2 was dispensed with by allowing IA No.6215 of 2026.

With the consent of all the parties, the matter is heard finally.

2. The present miscellaneous petition filed under Article 227 of the Constitution of India, challenges the order dated 28th February, 2026 passed by Third District Judge, Shivpuri [hereinafter referred to as ''lower appellate Court''] in Regular Civil Appeal No.11 of 2025 (Annexure P1), whereby the learned lower Appellate Court, by exercising powers under Order 18 Rule 17 of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"], and invoking Order 41 Rule 27(1)(b) and Order 41 Rule 24 of CPC, by keeping the appeal pending, directed the learned Trial Court to record the remaining evidence of respondent-defendant No.2 and return the records and in the event, evidence of defendant No.2 could not be recorded, then return the records after concluding due proceedings.

3. In brief, the facts leading to filing of the present petition are that respondent No. 1-plaintiff and petitioner-defendant No. 1 are real brothers and sons of respondent-defendant No.2. It was the case of the plaintiff that the disputed property situated at Ward No. 2, Municipal Council Kolaras, District Shivpuri, is the property owned by him, which was purchased by him in the name of his younger brother, Dinesh Kumar Jain. After the death of deceased- Dinesh Kumar Jain, who died intestate, the property devolved upon defendant No.2 and, by virtue of a gift deed, defendant No.2 transferred the same in favour of defendant No.1. It is the case of the plaintiff that defendant No. 2 was not physically and mentally fit to execute the gift deed dated 8th April, 2022 and, therefore, a suit was filed for declaring the registered gift deed as null and void, along with the relief of injunction. A joint written statement was filed by petitioner-defendant No.1 and defendant No. 2, wherein they disputed the claim of the plaintiff. During the course of trial, the examination-in-chief of defendant No.2 was conducted and, to a certain extent, her cross-examination was also conducted. Thereafter, she did not appear in the witness box, and her evidence was declared closed. The learned Trial Court, after taking into consideration the pleadings of the rival parties and considering the evidence available on record framed issues, dismissed the suit filed by respondent No.1- plaintiff vide judgment and decree dated 23.12.2024 (Annexure P7). Respondent No.1- plaintiff assailed the said judgment and decree by filing a regular civil appeal before the learned lower appellate Court and the lower appellate Court passed the impugned order dated 28th February, 2026, which is under challenge in the petition.

4. Learned Counsel appearing for the petitioner submits that once, respondent No.1-plaintiff accepted the order dated 09.12.2024 (Annexure P5) passed by learned Trial Court, whereby the evidence of defendant No. 2 was declared closed, and did not assail the same any further, coupled with the fact that the plaintiff failed to establish any foundational fact, i.e., that the suit property was purchased by him in the name of his younger brother, before the learned Trial Court, and no application under Order 18 Rule 17 of CPC was even filed before the lower Appellate Court, the lower Appellate Court, on its own, could not have exercised the suo motu powers and ought not to have passed the order impugned in the petition. By taking this Court to the provision contained under Order 18 Ru