:^ ^..} -< 1 -^ ^- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL N0. T^/ / 2010 APPELLANT Snglrflenai DEFENDANT N0.4 (IN TRIAL COURT DEPENDANTN0.6) ^Prema. Bai, W/o Harihar Sin^i, Aged about 45 years, Occupatipn - Agricuiturist, R/o Village - Gopalpur^ Post - Surajpur, P.S. & TahsU - Surajpur,Distt.Surguja(C.G.) RESPQNDENTS RES.NO.1TO 6 PLAINTIFF, ; VERSUS ^- .^- ,,^%; .•^y ^ ^...••:^';..--"' ^. ^- ^^if ^•' ^3 <• ^^ ^ x' 0.3, v>" (^6. DEFENDANTNO.l ^ Lachmaniya, W/o Bagholaa, Aged about 60 years Roopnarayan S/o Bagholan, Aged about 30 years Urman D/o Bagholan, Aged about33years Bholi D/o Bagholan, Aged about 32 years Pramila D/o Bagholan, Aged about 30 years Meena D/o Bagholan, Aged about 18 years All are occupation Agriculturist R/o ViUage Parri, P.S. & Tahsil - Surajpur, Distt. Surguja- (C.G.) Manager, Bhoomi Vikas Bank, Ambikapur, Distt. Surguja-(C.G.) :|pp.— DEFENDANT N0.2 ^. Braach Manager, Bhoomi Vikas Bank, Branch Surajpur, Distt. Surguja- (C.G.) DEFENDANT N0.3 ^ State of Chhattisgarh, (IN TRIAL COURT Through - CoUector, DEFENDANTN0.5) Surguja, Ambikapur, Distt. Surguja-(C.G.) MEMORANDUM OF APPEAL UNDER ORDER 43 RULE l{u) OF THE CODE OF CIVIL PROCEDURE, 1908 a HSGH COURT OF CHHATTiSGARM AT BILASPUR ADpellant DefendantNo.4 (In tria! Court defendant No.6) Respondents Res.No. 1 to 6 Plaintiffs IVI.A. No.74 OF 2010 Prema Bai Vs Lachmaniya and others -¥., POST FORORDERON ll AUGUST.2011 Sd/- G. Minhajuddin Judge -^' ^, .^. HIGH COURT OF CHHATTISGARH AT BSLASPUR ApDeiIant DefendantNo.4 (In trial Court defendant No.6) Respondents Res.NO. 1 to 6 Plaintiffs M.A.N0.740F2010 Prema Bai Vs Lachmaniya and others Present: Mr. AN Pandey, counsel for theappellant. Mr. AK Shukla, counsel for the respondents No. 1 to 6. Mr. Sunii Tripathi, counsel for respondents No. 7 & 8. Mr. GD Vaswani, Govt. Advocate forthe State/respondent No.9. ORDER (Passed on } 2-. August,2011) G. Minhaiuddin. J 1. This appeat under Order 43 Rule 1 (u) of the Code of Civjl Procedure (in short "CPC") has been filed against the judgment of remahd dated 28.7.2010 passed by 1st Additional DJstrict Judge, Surajpur, Distt. Surguja, in Civil Appeal No.24A/09, arising out ofthe judgment and decree dated 29.7.2009 passed by Civil Judge, Class-1, Surajpur, Distt. Surguja in Civit Suit N0.40A/04, Lachmaniya and others Vs. Manager, Bhumi Vikas Bank, Ambikapur and others, whereby the suit of the piaintiffs/respondents No. 1 to 6 was dismissed by the trial Court. 2. Brief facts of the case are that Kailash, original defendant No.3 and Baghelan, origina! defendant No.4, had taken an agricuitura! loan from respondent No.7/defendant No.1 Bhumi Vikas Bank, Ambikapur. However, on account of non-payment of the loan amount, the mortgaged properties were soid by the bank through auctio.n proceedings and the same was purchased by the present appeliant/defendant No.6 Prema Bai. During the course of auction proceedings, objections were raised before the officers of respondent NoJ/defendant No.1 bank that the suit property is ancestral property and respondents No.1 to 6/piajntiffs have also interest in the same and the original defendant No.3 Kaitash and \^' f) r, defendant No.4 Baghelan have no n'ght to mortgage the sujt property with the bank for taking loan without consent of respondents No. 1 to 6/plamtiffs. However, after rejecting the sajd objectjons,the suit property was sold by public auction and the same was purchased by the present appellant/defendant No.6. Aggn'eved by the above auction by the officers of the bank, respondents No. 1 to 6/plaintiffs fited a suit for declaration that the said auctjon was not binding on respondents No. 1 to 6/plaintiffs and for injunctjon restrainjng respondents No. 7 & 8/defendants No. 1 & 2 from jnterfering, inany way, with the possession of the plaintiffs over the suit land. After triaj.the said Civil Suit No.40A/04 * was dismissed by the trial Court vide judgment and decree dated 29.7.2009. 3. Against the judgment and decree dated 29.7.2009, a regular first appeal bearing No. 24A/09 was preferred before the 1 Additional Djstrict Judge, Surajpur, Distt. Surguja under Section 96 of the CPC. During pendency of this appeaj, respondents No. 1 to 6/pjaintiffe moved an applicatjon under Order 41 Rule 27 of the CPC along with ii'st of documents for taking additional evjdence on record. 4. The first appellate Court, after aljowjng the saidappljcation of respondents No. 1 to 6/pjaintiffs, set aside the judgment and decree dated 29.7.2009 of the triaj Court in CMI Suit No.40A/04 and remanded the case back to the trial Court with a direction that the trial Court shall afford an opportunity to the pjaintiffs/respondents No. 1 to 6 for adducjng evidence in support of the documents fiied with the appjicatjon under Order 41 Rule 27 of the CPC, and after giving an opportunity for rebutting . tfte same to the defendants, decide the sajd suit afresh. 5. Being aggrieved by this order of remand dated 28.7.2010 passed in Civil Suit N0.24A/09, the present miscejjaneousdvii appeai under Order 43 Rule 1(u) of the CPC has been fHed by the origjnal . defendant No.6/appeliant Prema Bai. 6. Under Order 41 of the CPC, there are three provisjons which relate to remand ofa case by the first appellate Court i.e. Order 41 Rule .^3^€: •/d.^ ^:%^/ ^... '-y kv <-'^ -A K; .\i; 23, Order 41 Rule 23A, & Order 41 Rule 25 of the CPC, which are reproduced hereunder: "Rule 23. Remand of case by Appellate Court. Where the Court from whose decree an appeal is preferred has disposed ofthe suit upon a prelimjnary point and the decree is reversed in appeai, the Appeilate Court may, if it thinks fit, by order remand the case, and may further direct whatjissue or issues shall be tried in the case so remanded, and shai! send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which di'rections to re-admit the sujt under its originaf number in the register of civJE suits, and proceed to determine the suit; and the evidence (If any) recorded during the originai trial shatl, subject a!i just exceptions, be evidence during the triai after remand. Rule 23A. Remand in other cases. - Where the Court from whose decree an appeaS ss preferred has disposed of the case otherwise than on a preSiminary point. and the decree is reversed in appeal and a re- triai is considered necessary, the Appeliate Court shall have thesame powers as jf has under rule 23. Rute 25.Whether AppeHate Court may frame issues and refer them for trlal fo Court whose decree appealed from. - Where the Court from whose decree the appea! is preferred has omitted to fra.me or try any i'ssue, or to determine any question of fact, which appears to the Appettate Court essentiai to the right decision of the suit upon the merits, the AppeElate Court may, if necessary, frame issues, and refer the same for triat, to the Court from whose d^cree theappeal is preferred, and insuch caseshall direct such Court to take the additionai evidence requjred; and such Court shail proceed to try such issues, and shali return the evidence to the Appejlate Court togsther with its findings thereon and the reasons ^ ^,,.^®:^, '•'%. \wm%/ ..^.-^" € ^ K-7; ''c^ therefor [within such time as may be fixed by the Appellate Court or extendied by it from time to time]." 7. in the present case, learned trial Court vide its judgment and decree dated 29.7.2009 has dismissed the suit of the plaintiffs. Thereafter, an applicatjon under Section 32 ofthe Chhattisgarh Land Revenue CQde, 1959 was filed by respondent No.l/plajntiff on 12.8.2009 before the Sub Divjsional Officer, Surajpur, Distt. Surguja, with a prayer that a report be called from the concemed Halka Patwari and Revenue inspector regarding possession over the suit land. On the basis ofthis application, the SDO, Surajpur, ordered the concemed R{ and Halka Patwari to conduct an enquiry in respect of actuaS possession over the suit land and submit the report in this regard. Pursuant to this, the concemed Rl and Halka Patwari after conducting enquiry prepared a Panchanama dated 15.9.2009 and submitted the same before the SDO, Surajpur. These two documents i.e. application under Section 32 of the CG Land Revenue Code, 1959 dated 12.8.2009 and Panchanama dated 15.9.2009, submitted before the Tehstldar, Surajpur aiong with covering letterof Patwari Dhansai Nagesh dated 19.8.2009, were fiied with the appiication under Order 41 Ruie 27 ofthe CPC before the first appeilate Court fortaking the s-ame on record as additjonai evidence. The said application has been ailowed and the matter has been remanded backto the trial Court. 8. The civiS suit was dismissed by the trial Court on 29.7.2009 and on that date, the aforesaid two documents were not in existence and the same came into existence subsequent to passing of judgment and decree by the trial Court. No reason has been assigned by respondents No.1 to 6/piaintiffs as to why they had not got an enquiry conducted regarding possessjon over the suit property during pendency of the suit before the trial Court. Oniy I'n the foiiowing three contingencies, addJtional evidence under Order 41 Ruie 27 of the CPC can be permitted to be taken by the appeliate Court: (i) the Court from whose decree the appeal is preferred has refused to admit evidence whteh ought to have been admjtted, or 1 r 1;%%^%1<.1 "y:; • ^ -^. '<..-! (ii) the party seeking to produce additional evjdence, estabijshes that notwjthstandlng the exercise of due djligence, such evidence was not within his knowledge or could not, after the exercise of due diljgence,, be produced by him at the time when the decree appealed against was passed, or (iiJ) the appeilate Court requires any document to be produced or any witness to be examined to enable it to pronouncejudgment, or for any other substantial cause. 9. Before decidjng the application under Order 41 Rule 27, first the appeal should be heard on merits and only after that if the Court comes to theconclusion that without the additional evidence sought to be produced, it will not be possjble for the Court to pronounce judgment, then only the additional evidence shouid be ailowed. Hence.the presence of oneof the conditions under Order 41 Rule 27 of the CPC is must for allowing additional evidenceat the appetlate stage. However, none of the conditions was present in the instant case, and the documents sought to be produced as additjonajevidence under Order 41 Rule 27 ofthe CPC came into existence only after dismissal of the suit 1 by the tria! Court. In addition to this, the order of remand is not covered under any of the provisions of Order 41 Rule 23, Order 41 Rule 23A or Order 41 Rule 25 of the CPC. As such, the judgment .and decree dated 28.7.2010 passed by the firstappellate Court in Civil Suit No.24A/09 is not in accordance with law and has been passed in utter disregard of law and thus, deserves to be set aside. 10.in the result. the appeal is allowed and the judgment and decree dated 28.7.2010 passed by 1st Additionai District Judge, Surajpur, Distt. Surguja in CiviiAppeal No. 24A/09 is hereby set aside and the flrst appellate Court is direeted to decide the appeal on merits, in accordance with law, as expeditjously as possjble, preferably wjthin a period of three months from the date of receipt of copy of thf's order. 11. No order as to costs. Sd/- G.Minhajuddin Judge Y?