Hemlata Shrivastava vs K. V. Shashi

The appellant/plaintiff has filed the present miscellaneous appeal under Order 43 Rule 1(u) of the C.P.C. against the judgment and decree dated 19.11.2019 (Annexure A/1) passed by Sixth Additional District Judge, Durg, District- Durg (C.G.) in Civil Appeal No. 78A/2019.

Learned counsel for the appellant would submit that the appellant has filed a civil suit bearing Civil Suit No. 1-A/2011 before Third Civil Judge Class-II of the Court of First Civil Judge Class-II, Durg, for permanent injunction, eviction and possession mainly contending that the plaintiff is title holder and in possession of the land bearing Khasra No. 40/3, area admeasuring 10850 sq.ft. situated at Patwari Halka No. 19, Village- Borsi, Tahsil & District- Durg (C.G.). The defendant out of the 10800 sq.ft. has illegally encroached in 2000 sq.ft. The learned trial Court after appreciating the evidence and material placed on record, allowed the suit and granted the decree by restraining the defendant from interference in peacefully possession of the suit property. The learned trial Court has further granted decree for demolition of illegal construction in 2000 sq.ft. and also granted decree for vacant possession as per the details mentioned in the judgment and decree.

Being aggrieved with the judgment and decree, the defendants have preferred first appeal bearing Civil Appeal No. 78A/2019 before the learned Sixth Additional District Judge, Durg. The learned Sixth Additional District Judge has allowed the appeal and remanded the matter to the learned trial Court to clarify the actual situation of the suit property and also with regard to the possession. Learned First Appellate Court has also allowed the application filed under Order 26 Rule 9 of the C.P.C. by the defendants and directed the trial Court to appoint competent revenue officer as commissioner and to submit commission report. Learned First Appellate Court has also granted liberty to the parties to amend their pleadings and to produce the documents in support of their case.

Learned counsel for the appellant would submit that the learned First Appellate Court should not have total remand the matter, but partial remand can be done. He would further submit that the learned First Appellate Court vide its impugned judgment and decree, has fully set aside the judgment and decree passed by the trial Court without considering the evidence, material placed on record, which was not scope of remand as defined under Order 41 Rule 23 or Rule 23A of the C.P.C. and would pray for quashing of the impugned order.

I have heard learned counsel for the appellant/ plaintiff and perused the documents placed on record with utmost satisfaction. From the records, it is quite vivid that the learned First Appellate Court vide its impugned and decree has directed for appearance of the parties on 02.12.2019 and thereafter, various steps have already been taken, but it has not reached to its final logic. Therefore, the learned trial Court is directed to make endeavor to complete trial within outer limit of one year from the date of receipt of copy of this order as the matter is pending since 17.08.2010 and about 12 years have already been elapsed.

It is made clear that this Court has not commented anything on merits of the case. Even if the defendants have difficulty, they may move appropriate application before this Court for recalling of the order as the order has been passed in their absence.

In view of the above, the instant miscellaneous appeal stands disposed of.