NATHURAM RAKHABDAS Vs. RAMESH CHAND

JUDGEMENT

(1.) These appeals have been directed against the judgment and decree passed by 4th Addl. District Judge, Mandsour in CRA No. 48-A/2000 and 49-A/2000 decided on 4-9-2001 whereby the judgment and decree passed by First Civil Judge, Class-I Mandsour in Civil Original Suit Nos. 13-A/99 and 14-A/99 dated 20-11-2000 has been set aside and the case has been remanded back to the trial Court for pronouncement of judgment afresh on the basis of pleading and evidence available in the said civil suit independently.

(2.) The civil suit filed by Rameshchandra-respondent vide Civil Suit No. 13-A/99, the trial Court has refused to grant permanent injunction in favour of the appellant whose right of easement in a lane (Galiyara) was obstructed by the appellant and accepted the counter claim filed by appellants/defendants Nathuram restraining the respondents/plaintiffs to use disputed passage and imposed damage of Rs. 5,000/- for removal of channel gate installed by appellant/defendant. Another Civil Suit No. 14-A/99 was filed by late Kishorilal and Munnalal showing them the tenant of Akbar Ali claiming easement right to use the passage (Galiyara). In this civil suit the relief was sought against the firm Nathuram and its partner in Civil Suit No. 14-A/99 Akbar Ali and Gyarsi Bai were also arrayed as defendants. The appellate Court remanded the case back to trial Court under Order 41, Rule 23-A, CPC for disposal of civil suit with direction that the trial Court after hearing final arguments shall pass the judgment in one day within a month in both the civil suits separately after appreciating the evidence adduced by the parties in the said civil suits and the evidence of one civil suit will not be read and considered in another civil suit. Against this, the appeal has been filed by appellants/defendants.

(3.) Learned counsel for the appellants has advanced his submission that the such remand by appellate Court is not permissible under Order 41, Rule 23-A, CPC and under Order 41, Rule 24, CPC. The appellate Court itself could determine the case finally by passing separate judgment in both the civil suits after appreciating the evidence adduced by the parties in both the civil suits instead of remanding back the cases for such purposes. He also submitted that under Order 41, Rules 23, 24 and 25, CPC, the appellate Court has not applied the powers of remand envisaged in CPC in its proper perspective and acted beyond jurisdiction whereas the contention of the counsel for the respondent is that the appellate Court has rightly remanded the case back for delivery of separate judgments after appreciating the evidence independently available in both the civil suits. Because without there being any order of amalgamation of both the civil suits and recording of the statements of witnesses of both parties and common recording of statements of witnesses of both the parties in both the civil suits, the trial Court has committed error in passing a common judgment in both the civil suits after reading and appreciating evidence in each other suit. Counsel for the appellants in support of his contention placed reliance on judgments reported in AIR 1988 Orissa 278, Basudev Gonda v. Narasingha Patra, K. Krishna Reddy v. The Special Dy. Collector Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh; AIR 1988 SC 2123, Bachan Pandey v. Dulhin Janki Devi, AIR 1976 SC 866, Nedunuri Kameshwaramma v. Sampati Subba Rao; AIR 1963 SC 884 and contended that appellate Court has wrongly placed reliance on a judgment reported in 1974 MPLJ 903, Suresh Kumar v. State of M.P. having no bearing on facts and law involved in the present case. It is a case relating to the question on valuation of civil suit and because of improper valuation trial Court was not having jurisdiction. This judgment has nothing to do with the power of remand of the appellate Court. Counsel for the appellants has also placed much emphasis on Section 99 of CPC which says no decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.