204 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : 22.04.2025 Sheetal Bhandari and another ...Appellants Vs.

Raghbir Singh and others ...Respondents CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Amit Jain, Sr. Advocate with Mr. Varun Parkash, Advocate for the appellants.

Mr. Amandeep Singh Manaise, Advocate for the respondents.

***

ANIL KSHETARPAL , J. (Oral)

1. The defendants assail the correctness of the First Appellate Court's order remitting the matter back to the trial Court for fresh decision. The First Appellate Court has also directed that a fresh Local Commissioner, not below the rank of Tehsildar alongwith other revenue officials should visit the spot and restore the passage.

2. The plaintiffs (respondents) filed a suit for grant of decree of permanent injunction restraining the defendants from blocking and encroaching upon passage of two karams in any manner. It appears that during the pendency of the suit, the plaintiffs filed an application for permission to amend the plaint, which was also dismissed. The plaintiffs then filed the first appeal. The First Appellate Court remitted the matter back to the trial Court by making the following observations:-

"25. The trial Court has declined the claim of the appellants merely saying that since this rasta has been amalgamated by the land owners along side the rasta, so this relief cannot be granted, which is totally an irresponsible finding given by the trial Court without seeing that the case of the appellants is to get public street restored at its place by removing the encroachments by the defaulters, whose land adjoins this rasta, which is not tenable in the eyes of law. It is the prime duty of the Courts as well as revenue authorities and the Government to protect the passages, which are established in the lands of the villagers for access and re-access of the farmers and public persons to approach their properties and no body from the public or adjoining the said rasta can be allowed to amalgamate the same in their property, which is totally against the law. No interest has been shown by the trial Court to feel the depth of the case that what is the actual relief in the present case. But the trial Court has wrongly and in a hasty manner dismissed the suit of the appellants, without restoring the passage, which is otherwise established in the 'Maswai' Ex.P.1 and jamabandi Ex.P6 and Ex.P.7. This casual approach of the trial Court is not appreciable. As such, judgment and decree under appeal are set aside and the case is remanded back to the trial Court to appoint a fresh local commissioner, not below the rank of Tehsildar, along with other revenue officials to visit the spot and to restore the passage, which is in existence as per their revenue record, by removing all sort of obstructions and constructions raised on the same; and then to decide this case afresh."

3. Heard the learned counsel representing the parties at length and with their able assistance perused the paper-book.

4. The enabling power of the First Appellate Court to remit the matter back to the lower Court is regulated by Order 41 Rule 23 and 23-A of the Code of Civil Procedure, 1908, which has been explained by the Hon'ble Supreme Court in ‘P.Purushottam Reddy and Another v. Pratap Steels Ltd’.

(2002) 2 SCC 686, in the following manner:-

“10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order XLI of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order XLI of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to deter