HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Misc. Appeal No. 3216/2018

Dine Khan S/o Shri Kasam Khan, Aged About 58 Years, B/c

Muslim, R/o Village Mawadi, Tehsil Siwana, District Barmer (Raj.)

----Appellant

Versus

1.

The Regional Forest Officer, Siwana, Siwana, District

Barmer

2.

The Deputy Forest Conservator, Barmer

----Respondents

For Appellant(s)

:

Mr. Khet Singh

HON'BLE MR. JUSTICE P.K. LOHRA

Judgment

03/01/2019

Appellant-plaintiff has preferred this appeal under Order

XLIII Rule 3(u) read with Section 104 CPC to challenge judgment

and order dated 26^th of October, 2018, passed by District Judge,

Balotra (for short, ‘learned lower appellate Court’), whereby

learned lower appellate Court, while setting aside judgment and

decree of Civil Judge & Judicial Magistrate, Siwana (for short,

‘learned trial Court’) dated 14^th of November, 2017, remanded

matter back for deciding the suit afresh after taking on record

written statement of the respondent-defendants.

Facts in brief are that appellant-plaintiff filed a suit for

recovery of a sum of Rs.1,39,544 against respondents before the

learned trial Court. It so happened that no written statement was

filed on behalf of the respondent-defendants, and therefore, the

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[CMA-3216/2018]

learned trial Court, while forfeiting their right to file written

statement, proceeded to decide the suit. Finally, the learned trial

Court decreed the suit. Being aggrieved by the same,

respondent-defendants preferred regular first appeal before the

learned lower appellate Court. The learned lower appellate Court,

after examining the matter, allowed appeal of the respondents and

taken their written statement on record subject to payment of cost

of Rs.5,000. Having exercised its discretion in taking written

statement of the respondent-defendants on record, the learned

lower appellate Court, while resorting to Order XLI and Rule 23,

23A & 24 CPC, remanded the matter back to learned trial Court

for deciding the suit afresh.

I have heard learned counsel for the appellant at length.

While dilating on the scope of remand under Order XLI Rule

23, 23A & 24 CPC, learned counsel for the appellant has placed

reliance on following judgments:

(1)

Municipal Corporation, Hyderabad Vs.

Sunder Singh [2008(2) WLC (SC) Civil 504]

(2)

Pratap Ram Vs. Chela Ram [2013 WLC (Raj.)

UC 590]

(3)

Guljar Ali Vs. Smt. Saroj Devi [2011 (4) WLC

(Raj.) 305]

(4)

[2014(1) WLC (Raj.) 137]

The power of the appellate Court to remand matter back is

envisaged under Order XLI Rule 23, 23A & 24 CPC and while

exercising the power of remand, concern of the appellate Court is

to satisfy itself that remand is called for proper adjudication of the

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[CMA-3216/2018]

case. In the instant case, as a matter of fact, the learned trial

Court decreed the suit without there being any defence of the

defendants inasmuch as their right to file written statement was

forfeited. The learned lower appellate Court, while construing

provisions under Order VIII Rule 1 CPC being not mandatory, in its

discretion, for doing substantial justice in the matter, permitted

the respondent-defendants to file written statement subject to

payment of cost of Rs.5,000. Once the learned lower appellate

Court has exercised its discretion of permitting the respondents to

file written statement on payment of cost, obviously, exercise of

its jurisdiction to remand the matter back to learned trial Court for

deciding the suit afresh cannot be faulted. The original judgment

and decree was passed by the learned trial Court without there

being any written statement on record, and therefore, the

respondents were precluded from putting their defence to the

claim of the appellant. In totality, in my opinion, discretion

exercised by the learned lower appellate Court, in the factual

backdrop of the case, canno