Prabhu Ram vs Bhanwar Lal

Vineet Kothari, J.—This appeal is directed against the order dtd.27.7.2009 passed by the learned court below in an appeal filed by the Plaintiff u/s 96 CPC whereby the judgment and decree dtd.9.12.2003 rejecting the suit of the Plaintiff, was set aside and the learned appellate Court remanded the matter back to the learned trial Court for re-deciding issues No. 1 and 2 after taking fresh evidence by summoning report/ appointment of Commissioner under Order 26 Rule 9 CPC with respect to determining the exact area of mines of the Plaintiff and the Defendant situated at khasra No. 18.

The learned court below giving detailed reasons for said remand found that the Plaintiff as well as Defendant failed to establish their respective limits of mining area and therefore, the report from Mining Engineer, Makrana and Tehsildar ought to have been summoned by the court below or the Commissioner should be appointed under Order 26 Rule 9 CPC who could determine the said limits and issues No. 1 and 2 be decided a fresh after the said fresh evidence is taken.

The learned Counsel for the Appellant submitted that the whole judgment and decree rejecting the suit filed by the Plaintiff Respondent could not have been set aside and only the limited remand could be made by the learned appellate Court even if it was of the opinion that taking of such fresh evidence was necessary. He relied upon the decision of coordinate Bench of this Court in the case of Amar Chand v. Bhanwar Lal reported in 1994 (1) RLW 285 and the decision of Hon''ble Supreme Court in the case of K. Gopalan Nair v. K. Balakrishnan Nair and Ors. reported in (2005) 12 SCC 351 in support of his contention.

The learned Counsel for the Respondent - Plaintiff submitted that since in the appeal filed by the Plaintiff himself, learned appellate Court had come to the conclusion that redetermination of limits of mines of both the parties is required to be made before deciding the suit for mandatory and permanent injunction. The order passed by the learned appellate Court for taking fresh evidence for redetermining the issues No. 1 and 2 is limited to the extent of remand for deciding issue No. 1 and 2 and if the words used that the judgment and decree dtd.9.12.2003 is set aside as used in the impugned order, it does not affect the rights of the parties, as far as other issues are concerned and the learned trial Court is required to decide issues No. 1 and 2 only a fresh.

Having heard the learned Counsels and upon perusal of the judgments and the reasons given in the impugned judgment, this Court is satisfied that the impugned order does not require any interference by this Court in the present appeal. The remand is obviously within the power of learned appellate Court under Order 41 Rule 27 CPC and if the learned appellate Court had come to the conclusion that the determination of limits of mines of the parties is necessary for deciding issues No. 1 and 2, the remand for this limited purpose, does not affect the other issues and findings thereon by the learned trial Court. Therefore, the contention of the learned Counsel for the Defendant to this extent is found to be devoid of merit.

Accordingly, the present appeal is dismissed. The learned trial Court shall proceed on remand and expedite the trial in accordance with the directions given in the impugned appellate order. No order as to costs.