NIHAL SINGH Vs. SAVITRI BAI

JUDGEMENT

(1.) This Misc. Appeal Order 43 Rule 1(u) of CPC has been filed against the order dtd. 18/7/2019 passed by First Additional District Judge Sironj, District Vidisha (M.P.) in Regular Civil Appeal No.5- A/2017 whereby, the judgment and decree passed dated, 30/11/2016 passed by Civil Judge Class-II, Sironj District Vidisha (M.P.) has been set aside and the matter has been remanded back for giving an opportunity to plaintiff to amend the plaint and seek the recovery of possession.

(2.) The facts in brief to decide the present appeal are that plaintiffs - Imrat Bai, Collector Singh and Dehsraj Singh filed a civil suit for declaration of title and possession in respect to disputed land bearing survey no.400 area 1.063 hectare, min 400/2 area 0.532 hectare before the Civil Judge, Class-II Sironj, District Vidisha (M.P.) [hereinafter referred to as ''the trial Court'']. The learned trial Court dismissed the suit filed by the plaintiffs. Against the impugned judgment and decree dated, 30/11/2016 passed by trial Court, a Regular Civil Appeal No.5A/2017 was preferred before First Additional District Judge Sironj, District Vidisha (M.P.) [hereinafter referred to as '' the first appellate Court '']. The first appellate Court after hearing the parties remanded the matter back by impugned order on the ground that under the proviso of Sec. 22 (2) of Specific Relief Act, the plaintiffs should have been granted an opportunity for amendment in plaint, against which the present appeal has been filed.

(3.) Learned counsel for the appellant argued that the order impugned passed by first appellate Court is against the settled principles of law as well as material available on record, therefore, the same is liable to be set-aside. It is further argued that learned first appellate Court has failed to consider that the possession of respondents/plaintiffs has not been proved in civil suit and the possession of appellant/defendant was admitted by the plaintiff herself. Further argument is that there was no prayer on behalf of respondents/plaintiffs for amendment in suit, however, learned first appellate Court granted the relief which is barred by limitation and cannot be granted in the light of the proviso of Order 6 Rule 17 of CPC. Learned first appellate Court has also passed the impugned judgment against the provision of Order 41 Rule 23-A of CPC, therefore, the impugned order be set aside.