Shiv Kumar and Others vs Brahaspati Singh and Another

K.K. Trivedi, J.—This is a Miscellaneous Appeal under Order 43 Rule 1(u) of the CPC challenging the validity of judgment dated 03.10.2008 passed in Regular Civil Appeal No. 25-A/2007 by the Additional District Judge, Baidhan, District Sidhi, by which while setting aside the judgment and decree dated 25.08.2007 passed in Civil Suit No. 109-A/2004 by 1st Civil Judge Class-2, Baidhan, the suit has been remitted back to the Civil Court to decide the issues afresh, taking into account the amendment made in the plaint at the appellate stage by the respondent No. 1. It is contended by learned senior counsel for the appellants that such remand order was bad in law in view of the fact that if the amendment in the plaint was allowed by the Lower Appellate Court, the matter could have been remitted to the trial Court for deciding the issues which were to be framed in accordance to the amended pleadings in the plaint and rest of the issues which were already decided earlier by the Civil Court were not to be re-agitated in terms of the provisions of Order 41 Rule 23(A) of CPC. It is contended that in fact the Lower Appellate Court exceeded in exercise of its jurisdiction while passing the judgment impugned and, therefore, this appeal is required to be filed.

It is contended by learned counsel appearing for the respondent No. 1 that in fact there were certain legal issues which were not decided by the Civil Court. The Lower Appellate Court thought it better to refer the matter to the trial Court for considering the legal issues again and, therefore, the complete remand order was passed.

After hearing learned counsel for the parties, it is clear that the Lower Appellate Court exceeded in exercise of its jurisdiction while passing the impugned judgment. In case any legal issues were raised by respondent No. 1 in appeal, it was the duty of the Lower Appellate Court to decide those legal issues and matter was not required to be remitted back to the trial Court for decision as the issues framed by the trial Court on the basis of pleadings of the parties were already decided, after appreciating the evidence adduced by the parties, resulting in dismissal of the suit. The findings were to be recorded by the Lower Appellate Court on such legal issues on its own and the matter was not to be remitted back to the trial Court for this purpose. Secondly, the issue which could have been framed after the amendment in the plaint by respondent No. 1 alone could be referred to the trial Court for recording of evidence, if necessary evidence was not available and giving finding on the said issues. However, all other issues were not required to be referred to the trial Court as has been done by the Lower Appellate Court in the impugned judgment.

Consequently, this appeal is allowed. The impugned judgment dated 03.10.2008 passed in Regular Civil Appeal No. 25-A/2007 by the Additional District Judge, Baidhan, District Sidhi, is hereby set aside. The appeal is restored to the Board of the said Court and is directed to be heard by the Lower Appellate Court. It will be open to the parties to the appeal to raise their submission on the legal issues in accordance to law. The appeal is allowed and disposed of accordingly. There shall be no order as to costs.