DINESH PRATAP SINGH Vs. RAGHAVENDRA PRATAP SINGH

JUDGEMENT

(1.) This appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure assails the judgment and decree dated 30.10.2009, passed in Civil Appeal No.47-A/2007.

(2.) Briefly stated, the facts are that the respondents/plaintiffs filed a Civil Suit No.141-A/2006 which was dismissed by the Civil Court on 28.04.2007. Aggrieved, they filed Civil Appeal No.47-A/2007 which was decided by the impugned judgment dated 30.10.2009. The said civil suit was filed for declaration of title and permanent injunction. The trial Court framed seven issues including the issue No.6 regarding limitation in filing the civil suit. The Issue No.6 was decided against the plaintiffs. The appellate Court remanded the matter by holding that during the pendency of appeal, additional documents were filed by the appellant. In view of these documents, it is necessary to record evidence of Raghvendra Pratap Singh & Munni Devi. It is also necessary to obtain report of handwriting expert relating to Ex.D/1 & D/4. Lastly, the commission was directed to be appointed as per Order 26 Rule 9 CPC. This judgment is criticized by the present appellant by contending that the appellate Court has not set aside the findings relating to Issue No.6. Once suit is held to be barred by time by the trial Court and such finding is not interfered with by the appellate Court, the remand is impermissible and was a futile exercise on the part of appellate Court.

(3.) Mr. Akhil Singh submits that necessary ingredients for invoking power of remand flowing from various rules under Order 41 were not attracted in the present case. Reliance is placed on order passed in MA No.1239/2001 [Devidas & another vs. Ganpat Rao & others], MA No.479/2011 [Vipin Kumar & others vs. Smt. Sarojani & another] and judgment of this Court reported in 2015 (1) JLJ 183 [Murari Lal Vs. Ram Kumar Ojha and another]. Lastly, AIR 2008 SC 2579 [Municipal Corporation, Hyderabad Vs. Sunder Singh] is also relied upon.