JAGNNATH AND ANOTHER Vs. KARUNA AND OTHERS

JUDGEMENT

(1.) This appeal filed by defendants no.1 and 2 under Order 43 Rule 1(u) CPC has been preferred against the order of remand dated 19.05.2017 passed by the District Judge, Alirajpur in Civil Appeal No.19-A/2016. On appeal preferred by the plaintiffs against the judgment and decree dated 14.07.2016 passed by the Civil Judge, Class-II, Alirajpur in Civil Suit No.11-A/2016 the same has been set aside and remanded the suit back to the trial Court for trial.

(2.) In the light of the judgment passed by Hon'ble Supreme Court in the case of Syeda Rahimunnisa Vs. Malan Bi (Dead) by L.Rs., 2016 10 SCC 315 and by this Court in the cases of Murarilal Vs. Ram Kumar Ojha, 2014 ILR(MP) 2162, Shivdayal Vs. Meena Bai, 2014 ILR(MP) 2174, wherein the scope, limit, extent and dimension of jurisdiction of the appellate Court under Order 41 Rules 23 and 23-A CPC are laid down requiring the appellate authority to first address on justifiability of reversing the findings of the Court below and ascertaining the requirement for remand thereafter shall exercise jurisdiction under Order 41 Rules 23 and 23-A CPC.

(3.) In the instant case, a suit for declaration and injunction filed by the plaintiffs was dismissed. On appeal at the instance of the plaintiffs, the appellate Court chose to remand the suit without reversing the findings setting aside the judgment and decree passed by the trial Court on merits; only on the premise that further facts are required to be elucidated by way of spot inspection through Court Commissioner under Order 26 Rule 9 CPC for just decision of the suit.