HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 5808/2017

Hajari Chand Mishra S/o Shri Prakash Chand Mishra, R/o 89,

Sirah Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,

Jaipur ----Appellant

Versus

1.

Pramod Mittal S/o Shri Keshav Dev Mittal, R/o 89, Sirah

Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,

Jaipur Died During Appeal

2.

Madhu Mittal W/o Late Shri Pramod Mittal

3.

Vinit Mittal S/o Late Shri Pramod Mittal, R/o 89, Sirah

Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,

Jaipur

4.

Tanuja W/o Shri Sanjay Garg, D/o Late Shri Pramod

Mittal, R/o 196, Madhopuria Ka Chok, Deenanath Ji Ki

Gali, Chandpole Bazar, Jaipur

5.

Sneha W/o Shri Nitesh D/o Late Shri Pramod Mittal, R/o

27A, Shri Krishna Vihar, Mansarovar, Jaipur

6.

Trapti W/o Shri Abhay Agarwal D/o Late Shri Pramod

Mittal, R/o Arya Samaj Mandir K Pass, Gangapur City,

Distt. Sawaimadhopur, Raj.

7.

Smt. Anita W/o Shri Gordhan Agarwal D/o Late Shri

Pramod Mittal, R/o New Indrapuri Colony, Bharampuri,

Jaipur ----Respondents

For Appellant(s)

:

Mr.Abhimanyu Singh, Adv.

For Respondent(s)

:

Mr.Kapil Gupta, Adv.

Mr.R.S.Sinsinwar, Adv.

Mr.Dharmendar Kumar, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

17/08/2021

This misc. appeal has been filed by the appellant-plaintiff

challenging the order dated 06.10.2017, passed in First Appeal

No.04/2015 decided by ADJ No.9, Jaipur Metropolitan, Jaipur.

(2 of 7)

[CMA-5808/2017]

The appeal was filed by the respondents challenging the

judgment and decree dated 21.02.2015 passed in favour of the

appellant.

The Appellate Court by the impugned order has held that the

Court below had failed to frame an important issue in the suit and

by framing an additional issue, the Appellate Court quashed and

set aside the judgment and decree dated 21.02.2015 and the

matter was remanded back to the Trial Court by framing new issue

as issue No.1 and both the parties were directed to lead oral and

documentary evidence before the Trial Court and further the

finding was again required to be given by the Trial court on issue

Nos.1, 2, 4 & 7 as were originally framed by the Trial Court. The

Appellate Court had also directed the Trial Court to decide the suit

within one year.

The appellant feeling aggrieved against quashing of

judgment and decree passed in his favour, assails the impugned

order, primarily on the ground of violation of Order 41 Rule 25

CPC.

Learned counsel appearing for the appellant submitted that if

the Appellate Court had come to the conclusion that an important

issue was not framed by the Trial Court, the Appellate Court had

power to frame an additional issue and to that extent, the matter

could have been remanded back by taking fresh evidence on the

newly framed issue and then the matter was required to be sent

back to the Appellate Court for deciding the appeal afresh.

Learned counsel submitted that the Appellate Court has

committed an error in quashing and set aside the entire judgment

and decree dated 21.02.2015 and further wrongly gave direction

to decide issue Nos.1, 2, 4 & 7 afresh.

(3 of 7)

[CMA-5808/2017]

Learned counsel submitted that the power of the Appellate

Court in framing issue and then refer them for Trial to the Civil

Court, is very well defined under Order 41 Rule 25 CPC and the

Appellate Court without considering the relevant provision of law,

has passed the order.

Learned counsel for the appellant submitted that the entire

reading of the impugned order dated 06.07.2017, is based on the

ground that an important issue was left out and the same was

required to be framed as an additional issue and evidence on the

same issue, could be collected by the Trial Court.

Learned counsel submitted that there was no basis to ask for

findings on the issues, whi