Q^ HIGH COWT OF CHHATTIS6ARH: BILASPUR S.B. HON'Bl£SHRI VIJAY KUMAK WRIVASTAVA. J MISCELLANEOUS APPEAL N0.418 OF 2005 ApDellant: Oefendant - 1 Re%ondents: Plaintiff befendant -2 Murari Lal Bajpai, Aged 61 years, S/o Shri SP Bajpai, Cultivator, R/o Viilage Tendoomudi, Tah:Dabhara, Dist Janjgir - Champa (C6) Vs, 1. Smt Parwati Bai (Dead), Shri Komal Bajpai, Aged 33 years, S/o Shr-i SL Bajpai, R/o SubhaA Nagar, Gondpwo, : Tah - bist Bitaspur (C6) 2. The Branch Mona9er, State Bank of India, Branch : Railway Colony, Bitaspur (C6) reESENT: 5hri Anurag bayal Shrivastwa, counsel for the appellant. Shri HS Patel, Counsel for the respondents. QRDER (Passed on 09.09.2005) This cypeal has been directed against the judgment and decree dated 03.01.2005 passed by District Judge, Bilaspur in Civil Appeal No.4/2004 whereby the judgment and decree dated 30.07.2004 passed by First Civit Judge Chss-I Bila^ur in Civil Suit No.77-A/99 has been set aside and the case has been remdnded for trial. z^ 2) Smt Parwati Bai, (dead) filed a Civil Suit for dechration and injunction alleging that she alone is the owner, entitled for TDR No.48178, issued for a sum of Rs.36,000/- (Rupees thirty six thousond only) ond defenctant No.2, the concerned Bank shall pay the amount exclusively tp her. She pleaded that, the amount of Rs.36,000/- was deposited by her but, while renewing TDR, defendant No.l got his name entered therein. During pendency of the aiit, Parwati Bai died and on the basis of Will in the ciapacit^ of legal representatives, Komal Bajpai has been substituted in place of Smt Parwati Bal. befendant No.l did not dispute the fact that disputed TDR No.48178 has been in his possession and the same has been in the joint name of Parwati Bai and himself. The said TDR has been issued for a sum of Rs.36,000/-. befendant No.l pleaded that on 02.06.1996, he paid Rs.36,000/- to Panwati Bai and in lieu of that it was agreed between them that at the time of encashment of TD& defenchnt No.l shall be entitled to receive half of the amount i.e. Rs.18,000/- (Rupees ewf'i'teen thousand only) and with the concurrence of Parwati Bai, got renewed the TbR iri the joint naine of Parunti Bai and himself. Defendont No.l denied the claim of present plaintiff Komal Bajpai and raised legal objection that without probate or letters of administration the plaintiff has no right to proceed wi-th the cose. Defendant No.2 in his reply pleaded that competent Cpyrt :f. ^..: :&i III i'fi ifi: has to declare and decide the entitlement to receive the amount of the concemed Tt>R. 3) Contention raised by learned counsel appearin9 for -the appellant is that when the Appellnte Court held that for want of production of the TDR, the suit could not be decided suitably, •then, it was incumbent upon the First Appellate Court to hold the suit liable to be dismissed on •that count. On the contrary,. leamed counsel appearing fcy the plaintiff / respondent No.l submits that so far as production of TDR in question is concerned, it is in possession of the defenckint No.l / appellant. Apart froni that, admittedly, the TbR has been issued for a aim of Rs.36,000/- and it bears Joint name of Parwati Bai ond the oppetlant Murari Lal, therefore, the facts admitted need not be proved by production of the said document. 4) In the judgment at para-2, un-disputed facts howe been mentioned oaid occording to that, Tbft bearing No.514604 was issued by the Bank i.e. defendont No.2 on 05.06.1989 in -the name of Porwati Bai for a sum of Rs.36,000/- for a period of seven years. After renewal, the said TbR bears No.048178 and has been renewed for the period from 05.06.1996 to 05.06.2000 and the same is in the custody of the appelldnt/defendont No.l. In -Hie judgment at para-4, the plaintiff's case has been described. The Plaintiff has averred that the appellont/defendont N^.l has got his name recorded jointly in the said TDR. Para-6 of the judgment rekites to the pleading of appelldnt/defendont No.l. Appellant/defenckint No.l admits that the T&R is in the joint names of Porwati Bai cnd himself ond it is in his custody. 5) Apparently, both the parties admit the issuance of TDR in the joint names of Parwati Bai and Murari Lal, therefore, when there is no dispute regardtng issuance of Tt>R, it is unnecessory to remand the casc on the ground that ori9inal TDR dioutd be calted and the evidence towards the original Tt>R should be recorded. Therefore, the judgment and decree passed by the First Appellate Court is erroneous and is tiable to be set aside. padma 6) Accordingly, -the impugned judgment and decree is set aside <md the case is sent back to the First Appellate Court wi-th a direction that the said cypeal diould be decided on merit, keeping in view the ob^rvations made herein. 7) Both the parties are directed to appear before the First Appelhte Court on 19.10.2005. Parties to bear their own costs. Sd/- V.K.Shrivastava Judge Wf.Wf.1