>- ^' l^- HiGH COURT OF CHHATTISGARH: BILASPUR Singie Bench: Hon'bie Shri DiSip Raosaheb Deshmukh, J. 3VIA.No. 05 of 2007 ADDJIcants Defendants Non-apDJIcants Plajntiffs Non-appllcaiits Defendants 1. Rambai widow of Mann Sai, aged abouat 66 years 2. Lachhan bai widow of Maan Sai, aged about 57 years 3. Anjor bai D/o of Maan Sai, aged about34years, 4. Kunwaria bai, D/o of Mann Sai, aged about 21 years Aii agricuiturists and residents of vlilage - Gunjera, The Navagarh, Djstt. Durg (CG) Versus 1. Fekuiai S/o Sunau, aged about 50 years 2. Dukhiram S/o Sunau, aged about 44 years. Both R/o ViEEage-Gunjera, Tah.Navagarh (Distt.Durg) CG. 3. State of Chhattisgarh through the Co!!ector, Durg. SVIJscelianeous under Order-43 Ryle 1 fu) of C.P.C. Present: Shri Vimiesh Bajpai, counsei forthe appeiiants. Shri Ranjeet Mazumdar on behalf of Shri Rajesh Pandey, counsei for respondentNo.1. Shri D»R.Sharma Senior Advocate with Ms.Swatl Shukia, counsei for respondent No.2. Shri Akhll Agrawai, PL for State. (Passed on 07.02.2008) The appeai was finaiiy heard. (2) The appellants are aggrieved by the order dated 16.2.2004 passed by the l!ird Additlonal Dlstrict Judge (FTC), Bemetara, Distt. Durg in civi! appeal No.81-A/2002, whereby whiie allowing the appeal, the lower appeilate Court has framed five issues, remitted the matter and directed the tria! Court to give opportunity to the parties to ~ - ^ u amend the pleadings, to frame additional issues, if necessary and aiso to adduce evidence and to decide the suit afresh. (3) Brief facts are that the respondents No.1 & 2 had instituted Clvll Suit No.149-A/1986 in the Court of Civll Judge, Ciass-l, Bemetara, Distt.Durg for deciaration of titie, possession and permanent injunction against the appeilants/defendants herein, on the basis of execution of a wi!l by Maan Sai on 20.10.1973. The trial Court dismissed the suit on appreciation of evidence and aiso on the basis that the wlil executed by IVSaan Sai was not produced. /.. Aggrieved, respondents No.1 & 2 along with Maharin Bai, the defendant No.6 in civil suit No.149-A/1986, preferred civii appeal No.81-A/2002 before the ilSfd Additional District Judge, Bemetara. During the pendency of the appeal, Maharin Bai died. instead of deciding the appeai on merlts the iower appeliate Court framed five additiona! issues and remanded the suit to the trial Court for fresh adjudication. !t aiso ailowed the appiication under Order-6 Ruie-17 for amendment and Order-41 Rule-25/27 C.P.C for filing wii! dated 28.1.1997 executed by Maharin Bai and directed the triai Court to take the documents on record and to give opportunity to the parties to incorporate the amendment and to aliov^ the parties to iead evidence, if any, and also to frame additionai issues, if necessary. (4) Learned counse! for the appeJiant/defendant strenuousiy urged that the order passed by the lower appellate Court is one without appjication of mind and is perfunctpry. He, therefore, prayed that the Impugned order be set aside and the iower appeilate Court be directed to declde the appea! and the applications under Order-6 Rule-17 and under Order-41 Rule 27 of CPC afresh. On the other hand, Shri D.R. Sharma, iearned Senior Advocate for respondent No.2 and Shri Ranjeet Majumdar, iearned counsel for respondent No.1 submltted that they had no objectson ifthe appeal is ailowed and the iov^er appeJiate Court is directed to decide the appeai afresh in accordance with iaw after deciding the appiications under order-6 Ruie 17 and order-41 Rule-27 of CPC afresh by passing a speaking order. " . ^— R ^ (5) Having considered the rival submissions, i have perused the impugned order passed by She iower appeiiate Court in civi! appeai No.81-^2002. It does not show consdous application of mind or reasons fbr aiiowing the applicatlon under Order-6 Rule-17 and the application under Order-41 Rule-27 Cr.P.C. it aiso failed to take into consjderation. that the wili exe^uted by Vaan Sai which was the foundation ofthe suit was not produced and the grounds on which the triaS Court had deciined to grant reiief to the plaintiff. Some of the issues framed by the iower appeiiate Court had aiready been decided by the trial Court. The order passed by the iower appellate Court is thus perfunctory and deserves to be set aside. (6) In the result, this misceiianeous appeai is aliowed and the impugned order dated 16.2.2004 passed in Csvii Appgai No.81- A/2002 is set aside. The appeliate Court shall, after taking into consideration the fact that the very foundation of the suit i.e. the wi!! executed by Maan Sai was not produced in suit, pass a speaking order, after hearing fresh arguments on the application under Order-6 Ruie17 of C.P.C. and the application under Order-41 Rule-27 of C.P.C. and shalt dedde the appeal in accordance with law. The trial Court sha!i transmit the record of Civi! Suit No. 149-A of 1986 to the Eower appel!ate Court and direct the parties to appear before the llird Additionai District Judge (FTC) Bemetara, Distt.Durg on 4.4.2008. Sd/- t DUip Raosaheb Deshmukh 1 Judge Priya