Madhya Pradesh High Court
Krishnakant And 2 Ors. vs Bansilal And 4 Ors. on 9 March, 2017
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Miscellaneous Appeal No.2307/2012
09/03/2017
Shri Ajay Jain, learned counsel for the appellant.
Respondents present in person.
The present miscellaneous appeal has been filed against judgment and decree dated 11/09/2012 passed in Civil Appeal No.6- A/2011 by which the appellate Court has remanded the matter back to the trial Court to decide the civil suit.
The facts of the case reveal that a civil suit was filed way back in the year 1995 i.e. on 03/04/1995 and a judgment and decree was passed on 20/09/2000. A first appeal was preferred against judgment and decree and the learned First Appellate Court by an order dated 14/08/2001 has remanded the matter back to the trial Court.
Thereafter, for the second time again a judgment and decree was passed on 07/08/2003 and again first appeal was preferred for the second time. The First Appellate Court for the second time has remanded the matter back to the trial Court on 15/04/2005. Thereafter, for the third time again a judgment and decree was passed by the civil Court on 28/10/2005 and for the third time a first appeal was preferred. By an order dated 04/04/2007, the First Appellate Court has again remanded back the matter.
Finally the civil suit was decided on 28/07/2011 and again on 11/09/2012 in a mechanical manner without assigning any reason, the learned appellate Court has remanded back the matter.
It is really unfortunate that the appellate Court without assigning any cogent reason, in a mechanical manner has remanded the matter back to the trial Court. In the considered opinion of this -2- Court, the learned appellate Court, instead of discussing the evidence and instead of deciding the ground raised by the appellate Court, has simply remanded the matter back. Earlier remands were on specific issued and civil Court has decided the matter has directed by the appellate Court.
The order on the basis of which the matter was remanded back on 10/01/2008 was for a limited issue and the same reads as under:-
**ekuuh; e/; izns'k mPp U;k;ky; [k.MBihB bUnkSj ds }kjk jhV ihfV'ku uacj 2896@07 esa ikfjr vkns'k fnukad 26&9&07 ds vuqlkj [email protected] dh vkSj ls izLrqr bl U;k;ky; }kjk ikfjr vkns'k fnukad 4&4&07 ds fo:) jhV fiVf'ku izLrqr dh xbZ Fkh tks Lohdkj djrs gq, tks ekuuh; e/; izns'k mPp U;k;ky; us funsZf'kr fd;k gS fd vihykFkhZx.k dh vkSj ls bl U;k;ky; esa izLrqr vkosnu varxZr vkns'k 6 fu;e 17 rFkk vkns'k 41 fu;e 27 ds vkosnu Lohdkj djrs gq, 5]000@& :i;s gtkZuk vnk djus ij vihykFkhZx.k }kjk vfrfjDr lEifRr ds laca/k esa eqy okn i= esa la'kks/ku lekfo"B djus rFkk izfroknhx.k }kjk tokc nkok izLrqr djus ij vfrjDr lk{; vafdr djrs gq, fu.kZ; ikfjr djus ds vkns'k fn;s gSa A vihykFkhZx.k ds vf/koDrk us vkns'kkuqlkj la'kks/ku lekfo"B fd;k] tks vuqizekf.kr fd;k x;k A pwafd vihykFkhZx.k }kjk gtkZus dh jkf'k :i;s 5]000@& bl U;k;ky; esa tek djk fn;s x, gSa A ,slh n'kk esa fopkj.k U;k;ky; }kjk fnokuh izdj.k dz0 21@95 esa ikfjr fu.kZ; ,oa t;i= fnukad 28&11&05 vikLr djrs gq, vihykFkhZx.k }kjk izLrqr vihy varhe :i ls Lohdkj djrs gq, izdj.k ekuuh; e0 iz0 mPp U;k;ky; }kjk fn,s x, funsZ'kkuqlkj izdj.k fjek.M fd;k tkdj fopkj.k U;k;ky; dks funsZf'kr fd;k tkrk gS fd vihykFkhZx.k }kjk izLrqr vkosnu vkns'k 6 fu;e 17 ftlds vuqlkj okafNr laifRr dk okn i= esa rn~kuqlkj la'kks/ku djrs gq, oknhx.k dks la'kks/ku djus gsrq voslj nsrs gq, izfroknhx.k dks rRlaca/kh oknksRrj izkIr gksus ds mijkar mHk;i{k dh vfrfjDr lk{; ysdj fof/kor~ izdj.k dk fujkdj.k djsa A vf/kuLFk U;k;ky; dk izdj.k vihykFkhZx.k dh vkSj ls izLrqr vkosnu fnukad 1&11&06 lfgr rqjar okil fd; tkosA mHk;i{k fopkj.k U;k;ky; ds le{j fnukad 8&2&08 dks O;ogkj U;k;k/kh'k oxZ&2 Hkhduxkao ds U;k;ky; esa mifLFkr jgs A rn~kuqlkj vihy dk ifj.kke vafdr djsa A vihy izdj.k nk[ky fjdkMZ esaA** Learned Civil Judge keeping in view the remand order has decided the civil suit and it was the duty of the appellate Court to -3- decide the matter on merits.
In the case of Smt. Ramabai & Ors. Vs. Harbilas & Ors.
reported in AIR 1997 MP 90, it has been held that Court trying suit on remand cannot act contrary to superior Court's directions. In the case of Municipal Corporation, Hyderabad Vs. Sunder Singh reported in V (2008) 437, the apex Court has held that remand order should not be passed in a routine manner. In the present case, various orders passed from time to time reveals that the remand orders have been passed in a routine manner.
Resultantly, impugned order passed by the appellate Court is hereby set aside and the appellate Court is directed to decide the appeal on merits by discussing the entire evidence available on record. However, the appellate Court shall be free to pass appropriate order in accordance with law keeping in view the fact that the matter is of the year 1995. The appellate Court shall decide the appeal positively within a period of two months from the date of receipt of certified copy of this order.
Parties shall appear before the appellate Court on 20/03/2017.
The record of the case be transmitted back to the trial Court positively within 3 days from today.
With the aforesaid, appeal stands disposed of.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej