Abida Begum & Ors vs Mst.Ziana & ors

Mst Abida Begum windo of Abdul Mazid, mst. Nazia Tabasum and Arifa Majid had filed a a suit for declaration to the effect that Will executed by

one Ahad Shiekh on 29.4.1994 in favour of Ali Mohd Naik and registered on 9.5.1994, acknowledging him as a Pissar Parvardah, was wrong,

baseless, null and void and for permanent prohibitory injunction to restrain Ahad Shiekh and Mst. Zaina Begum from transferring the property

situated at village Krawa Tehsil Banihal to Ali Mohd Naik or any other person. This suit was decreed by learned Munsiff Banihal vide his judgment

and decree dated 6.9.2004, holding that Will executed by Ahad Shiekh in favour of Ali Mohd Naik was null and void, inoperative ad not binding

on the rights of the plaintiffs.

Aggrieved by the judgment and decree of learned Munsiff Banihal, Mst. Zaina and Ali Mohd Naik had preferred an appeal before learned

Additional District Judge Ramban. Learned Additional District Judge has vide his judgment of November 20, 2007, remanded the case to learned

Munsiff Banihal for passing fresh judgment after hearing learned counsel for the parties.

Mst Abida Begum and the legal representatives of Abdul Majid have filed this appeal questioning First Appellate Court's remand order on the

ground that the appellate Court had omitted to consider the provisions of Order 41 Rule 24 of the Code of Civil Procedure and pass requisite

orders in the appeal on the basis of the evidence, which was available on records.

I have considered the submissions of learned counsel for the parties and gone through the judgments of learned Munsiff Banihal and learned

Additional District Judge Ramban.

Learned Additional District Judge Ramban had remanded the case to learned Munsiff for his fresh judgment in the case solely on the ground that

the learned Munsiff, according to him, had erred in treating issue Nos. 1 and 3 as connected issues. According to learned District Judge, learned

Munsiff was required to treat both these issues independently and return his finding thereon, as warranted under law.

I do not see any justification in learned Additional District Judge Ramban's remanding the case for fresh judgment when he could have himself, after

resettling the issues, in case resettlement was required under law, pronounced his judgment in the case on the basis of the evidence which was

available on records. Learned District Judge has adopted a short cut in omitting to consider the mandate of Order 41 Rule 24 of the Code of Civil

Procedure, which for facility of reference, is reproduced hereunder:

Order 41 Rule 24:

Where evidence on record sufficient, Appellate Court may determine case finally

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling

the issues, if necessary, finally determine the suit notwithstanding that the judgment of the Court from whose decree the appeal is preferred has

proceeded wholly upon some ground other than that on which the appellate Court proceeds.

In terms of the provisions of Order 41 Rule 24 of the Code of Civil Procedure a First Appellate Court is under an obligation to give its own

judgment on the issues if the parties had led their evidence on all the issues in the case and which were sufficient for the disposal of the appeal.

In the present case learned Munsiff had dealt with the issues in detail on his appreciation of evidence and consideration of law on the point, which

according to him was applicable to the facts of the case.

The findings of the learned Munsiff on the issues framed in the case were thus, in terms of Order 41 Rule 24, required to be considered by the

learned Additional District Judge on merits and in the event of any doubt in the mind of learned District Judge about learned Munsiffs view of

taking issue Nos. 1 and 3, for joint consideration, he was required to decide all the issues arising out of the pleadings of the parties on the basis of

the evidence produced by them and taking in view the law on the subject and, of course, after resettling the issues, in case he was of the view that

resettlement of the issues was necessary for just and proper adjudication of the case,

He had thereafter to agree or disagree with or suggest any modification in the findings returned by learned Munsiff, of course, after spelling out

reasons therefor.'

Learned District Judge, has, however, not considered the appeal in the light of provisions of Order 41 Rule 24 of the Code of Civil Procedure and

had adopted a course of sending the case back to learned Munsiff for his fresh judgment, which is not warranted under law.

Appellate Court's order, remanding the case to learned Munsiff for rewriting the judgment, cannot thus be sustained. It is, accordingly, set aside.

File No. 04/Appeal on the file of learned Additional District Judge Ramban shall accordingly revive for its reconsideration by learned District Judge

on its merits.

Parties through their counsel are directed to appear before the learned Additional District Judge Ramban on 21.04.2008.