INTHE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR CC.&.) Misceltaneous Appeal No. H1 of 2011 APPELLANTS/ Defendants no. 1 :1. k< Defendants no. 7 Ramayan Prasad 6upta, aged about 41 years, S/o Shri Manharananya Lal ^upta. R/o Village-Baloda, Tahsil- Baloda. bistrict-Janjgir-Champa (.C.G.) Smt. Prabha Shrivas, W/o Shri Arun Shrivas, aged about 45 years, R/o Village-6ataura. at present Near N.T.P.C., Seepat, Tahsil-Masturi, bistrict-Bilaspur (C.G.) Arun Shrivas, S/o Shri Muniram Shrivas, aged about 40 years, R/o Village-Gataura, at present Near N.T.P.C., Seepat, Tahsil-Masturi, bistrict-Bilaspur (C.G.) VERSUS RESPONbENTS/ Plaintiffs Defendants :1. Ramkali Bai, aged about 70 years, W/o Shri Dwarika Prasad ^upta, R/o Village-Gudi, Tahsil-Masturi, bistrict-Bilaspur (C.G.) 2. Geeta Bai, aged about 65 years, W/o Shri Parasram Gupta, R/o Imlipara, Bilaspur, bistrict-Bilaspur (^.G.) :3. Lekhram Sahu, Advocate, S/o Shri Ashok Kumar Sahu, R/o Jarve, Tahsil-Janjgir, bistrict-Janjgir- Champa (C.G.) 4. Pramod Singh, Advocate, S/o Shri Lakhan, R/o Javalpur, Tahsil- Janjgir, bistrict-Janjgir-Champa (C.G.) 4- ll' n^. 7. Smt. Seeta Bai Gupta, aged about 62 years, W/o Shri Manharan Lal, R/o Baloda, Tahsil-Janjgir, bistrict- Janjgir-Champa (C.G.) Rajendra Gupta, S/o Shri Laxmi Prasad Gupta, Additional Tahsildar. Seepat, District-Janjgir-Champa (C.G.) at present Tahsildar, Korba, bistrict-Korba (C.6.) State of Chhattisgarh, through the Collector. Bilaspur, District-Bilaspur (C.6.) MISCELLANEOUS APPEAL UNbER ORbER 43 RUUEJj[y) OF CObE OF CIVIL PROCEDURE. 1908 ^ ^ HIGH COURT OF CHHATTISOARH AT B1LASPUR Misc. Appeal No. 47 of 2011 APPELLANTS/ Defendant No. 1 Ramayan Prasad Gupta & others VERSUS Ramkali BaL& others RESPONDENTS/ Plaintiffs rMISC. APPEAL UNDER ORDER 43 RULE 1 (U) OF CPC. 1908) (SB: Hon'ble Mr, N.K. Ag.arwaj, J.l Present : Shri Ratnesh Kumar Agrawal, Advocate for the appellants. Shri Prafull Bharat, Advocate for respondent No.1. None for respondent No. 2 to 5 though served. Shri GD WasVt/ani, Govt. Advocate with Shri Sanjeev Kumar Agrawal, Pane! Lawyer for the State/respondent No. 7. ORAL ORDER (Passed on 1S.OS.2S11) Instant Misc. Appeal is preferred by the defendant No. 1, 7& 8 against the judgment and decree dated 08.03.2011, passed by the District Judge, Bilaspur, in Civi! Appeai No. 7-A/2010, whereby the application preferred by the plaintiffs under Order 41 Ru!e 27 of CPC was allowed, judgment and decree was set aside and the matter was remitted back to the tria! court for its decislon afresh. Brief facts of the case are : respondents/piaintiffs instituted a suit for declaration, partition, jnjunction and possession. The trial court, on appreciation of evidence led, material placed and submissions made by the parties, dismissed the sult. There-against appeat was preferred by the plaintiffs under Section 96 of CPC before the District Judge, Bilaspur, along with apptication upder Order 41 Ruie 27 of CPC for admission of additiona! evldence. The flrst appeit-ate court allowed the application holding that additional evidence is ^-... ^^T^'- ^/^^. fit^,^ 'l X ~~til' ~'ii ^ .•:^1' necessary for just decision of the case and consequently set aside the judghent and decree passed by the trial court and remitted back the matter for deciding the suit afresh after affording opportunity of adducing additional evidence to both the partjes. Shri Ratnesh Agrawal, iearned counsei appearing for the appeliants would submit : the first appellate court went wrong in allowing plaintiffs application fiied under Order 41 Ruie 27 of CPC and consequently remanding the matter to the trial court. On the other hand, Shri Prafuli Bharat, iearned counsel appearing for respondent No. 1 supported the judgment and decree impugned and would submit, in the facts and circumstances of the case, the first appellate court has rightly aliowed the plaintjffs application for admission of additional evidence and was also correct in remanding the matter to the tria! court. 1 have heard the counsel appearing for the parties and perused the judgment and decree impugned as weil as records of both the courts below. The first appellate court, looking to the relevancy of the documents filed by the appellants along with application under Order 41 Ruie 27 of CPC, has rightly allowed the same. However, on the face, has committed an error of law in remanding the matter after settlng aside judgment and decree for deciding the suit afresh after allowing plaintiff's application fiied under Order 41 Rule 27 of CPC. As per procedure prescribed in Order 41 Rule 28 of CPC, wherever additional evidence is allowed to be produced, the appellate court may either take such evldence or direct the court ^* from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appeltate Court. 8. As per Order 41 Rule 29 of CPC, where additional evidence Is directed or allowedto be taken, the appellate court sha!! specify the points to which the evidence is to be confined and record on its proceedings the points so specified. 9. For aforementioned purpose, in my opinion, the flrst appellate court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand couid be only in terms of Order 41 Rule 23, Order 41 Ruie 23-A or Order 41 Rute 25 of CPC. None of the said provisions have any application in the instantcase. 10. The Supreme Court in case of Shanti Devj v. Daropti Devi and others has held in para 13 of itsjudgment as under : "13. But the same by itself could not be a ground for remitting the entire suit to the learned Trial Judge upon setting aside the decree of the learned Tria! Court. The power of remand vests in the Appetlate Court either in terms of Order XL! Rutes 23 & 23A or XL! Rule 25 of the Code of Civil Procedure. Issue No. 4 was held to have been wrongty framed. Onus of proof was also wrongly placed and only in that view ofthe matterthe High Court thought it fit to remit it to the learned Trial Judge permitting the parties to adduce fresh evidence, it, therefore, required the learned Trial Judge to determine a question of fact, which according to it was essential, upon reframing the issue." ' 2006(13) SCC 775 ,:.i^'^^>.,'f' ^ 11. For the reasons mentioned hereinabove, the judgment and decree passed by the first appeltate court is modified and the matter is referred to the tria! court in terms of Order 41 Rule 28 of CPC with the following directions: i. The trail court upon recording the evidence as directed by the first appellate court shall transmit the records to the first appellate court with a copy of its report annexed thereto. ii. Such an exercise by the tria! court must be compieted within a period of eight weeks from the date of communication of this order. iii. The parties are directed to appear before the tria! court on 20.09.2011. No order asto costs. Sd/- N.K.Agarwal Judge Sahu