Kallu @ Kalicharan & Another vs Rajendra Singh & Others

This Miscellaneous Appeal has been filed by the defendant being aggrieved by the order dated 17.12.2015 passed by the Court of Additional Judge to the First Additional District Judge, Datia, in regular Appeal No.17-A/15, vide which the Court of Additional District Judge has been pleased to remand the matter to the Trial Court on the ground that opportunity of presenting evidence in relation to the documents which were filed before the First Appellate Court along with an application under Order 41 Rule 27 of C.P.C. was allowed during the course of the appeal and therefore, based on such documents, matter was remanded back to the Trial Court for taking evidence

and providing opportunity of cross-examination of the Commissioner (Revenue Inspector) to the parties and decide the issue afresh.

The aforesaid order has been assailed on the ground that the suit was decided by the Trial Court not on the preliminary issue, but after recording statements of the parties and that too on merit and therefore, First Appellate Court has wrongly mentioned that learned Trial Court has decided the suit on preliminary point and has exercised power of remand under Order 41 Rule 23, which is contrary to law and based on perverse findings.

The appellant has also challenged that part of the order vide which the application under Order 41 Rule 27 was allowed on the ground that the evidence in respect of the documents which were filed under Order 41 Rule 27 was already considered by the Trial Court. The appellant has also assailed the said order on the ground that once the application under Order 6 Rule 17 was rejected, there was no ground to admit documents as were filed along with application under Order 41 Rule 27 of C.P.C.

Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Murari Lal Vs. Ram Kumar Ojha & Another as reported

in 2015(1) M.P.L.J. 243, wherein this Court has held that authority under Order 41 Rule 23 and Rule 23-A dealing with jurisdiction of the Appellate Court, can be exercised on satisfaction of twin requirements, namely; disposal of case by Trial Court otherwise than on a

preliminary point and decree is reversed in appeal and retrial is considered necessary.

Similarly, reliance has been placed on the

judgment of Supreme Court in the case of Zarif Ahmad

(dead) through LRs & Another Vs. Mohd. Farooq as

reported in (2015) 13 SCC 673, wherein it has been held that if the Trial Court after hearing the parties and discussing the evidence, decide all the issues in favour of the plaintiff and decreed the suit, then the Appellate Court is empowered to take additional evidence or such evidence as may be necessary. It is further held that Order 41 Rule 24 provides that where evidence on record is sufficient, the Appellate Court may determine the case finally. The practice of remand has been deprecated by the Supreme Court.

There is agreement to the above proposition of law, but in the present case, it is apparent that the evidence on record was not considered to be sufficient by the First Appellate Court and therefore, after accepting documentary evidence by way of allowing the application under Order 41 Rule 27, a finding was recorded that the evidence as produced before the First Appellate Court, needs to be appreciated by the Trial Court and after providing an opportunity to cross- examine the Commissioner i.e. Revenue Inspector, appropriate orders be passed. It is an admitted position that no opportunity to cross-examine the Revenue Inspector on the issue of the documents which were filed under Order 41 Rule 27 could have been provided by the Trial Court, therefore, the order

of remand in the opinion of this Court cannot be faulted with specially when the law as laid-down in the case of Jegannathan Vs. Raju Sigamani & Another as

reported in (2012) 5 SCC 540, provides that the Trial Court if disposes the matter on merits and not on any preliminary issue, the Appellate Court is justified in directing retrial and such order is valid in terms of it''s powers under Order 41 Rule 23-A of C.P.C.

In view of such pronouncement of Supreme Court

in the case of Jegannathan Vs. Raju Sigamani & Another

(supra), this Court is in agreement that there is no illegality in the impugned order of remand. Thus, this Miscellaneous Appeal is disposed of upholding the order of the First Appellate Court.

Let a copy of this order be sent to the Court of Civil Judge Class-I, Bhander, District- Datia, to commence the proceedings in terms of the order of remand dated 17.12.2015 without any further delay and with further direction that it shall make an endeavor to decide the issue within a period of three months from the date of receipt of copy of the order, if possible.