BHAGWATI BAI Vs. SHIV PRASAD AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment dated 25.1.2010 passed in Civil Appeal No.23-A/2007, by the First Additional District Judge, Katni, arising out of judgment and decree dated 24.8.2006, passed in Civil Suit No.43-A/2006, by the Second Civil Judge, Class-I, Katni, whereby the judgment and decree passed by the trial Court has been set aside as a whole and the matter has been remitted back for permitting the respondents/plaintiffs to amend the plaint and to adduce the additional evidence and to pass the judgment and decree afresh. It is contended by learned senior counsel for the appellant that such a remand order was not justified as if the application under Order 41 Rule 27 of C.P.C., and the application under Order 6Rule 17 of C.P.C., filed by the respondents/plaintiffs were allowed, the matter was required to be remitted back only for recording of the evidence on those two applications and giving a finding so that the matter could have been decided finally by the lower appellate Court. It is pointed out that there is no justification shown in the entire judgment as to why the findings recorded by the Court below after due appreciation available on record, have been set aside.

(2.) Learned counsel for the respondents have drawn attention of this Court to the order sheet dated 25.10.2010 and have contended that the interim stay granted earlier, was partially vacated and it was directed that the trial Court was to record the evidence, but not to render the final decision in the matter till further orders. It is contended that now the trial Court has already recorded the evidence, but the matter has not been decided. In fact, the lower appellate Court should not have set aside the entire judgment and decree passed by the trial Court, in exercise of its power under Order 41 Rule 23-A of C.P.C.. In fact the power should have been exercised under Order 41 Rule 25 of C.P.C., and after framing of the issues on the evidence and pleadings so adduced before the lower appellate Court, the matter should have been sent to the trial Court for recording of findings and to produce such findings before the appellate Court as per the provisions of Rule 26 of Order 41 CPC. The additional evidence could have been considered by the lower appellate Court itself and the judgment could have been passed on merits. This being so, it is contended that the order of remand, after setting aside the impugned judgment and decree passed by the trial Court as a whole is not sustainable. The aforesaid submissions of learned counsel are considered.

(3.) It is not disputed that categorical findings were recorded by the trial Court after framing of issues on the basis of the pleadings made by the parties and the evidence aduced. Such findings as have been given by the trial Court, have not been looked into by the lower appellate Court. Such findings could have been reversed after appreciation of evidence by the lower appellate Court, but this has not been done. In view of this, the remand order, after setting aside the impugned judgment and decree of the trial Court, as a whole, cannot be sustained. However, now since the evidence on the question of pleadings after amendment, and the additional evidence which is sought to be taken on record, have been recorded by the trial Court, it would be better to direct the trial Court to record its finding on the said additional pleadings and evidence and to send back the entire matter to the lower appellate Court to decide the appeal of the respondents/plaintiffs afresh. The evidence already recorded on earlier occasion will also be looked into by the lower appellate Court and after its proper appreciation, fresh judgment and decree will be passed. The trial Court will give its finding only on the amended pleadings and evidence which is sought to be produced.