RANCHI, India, May 30 -- Jharkhand High Court issued the following order on April 30:
1. Heard Mr. Sandeep Verma, learned counsel appearing for the appellant.
2. Notice upon opposite parties have been effected and O.P. No. 2 has put his appearance and filed his counter affidavit, in spite of that neither the O.P. No. 1 nor O.P. No. 2 are present, in view of that this appeal is being heard in absence of opposite parties.
3. This appeal has been preferred against the judgment dated 10.08.2017, passed by the learned District Judge-IV, Dhanbad, in Title Appeal No. 148 of 2008, by which, the judgment and decree dated 13.12.2008 (decree signed on 17.12.2008) in Title Suit No. 79 of 2004, passed by the learned Additional Civil Judge (Senior Division), Dhanbad has been remanded back to the learned trial court.
4. Mr. Sandeep Verma, learned counsel appearing for the appellant submits that Title Suit No. 79 of 2004 was instituted in the court of learned Civil Judge Junior Division I, Dhanbad against the defendant /appellant praying therein a decree for declaration that the defendant is not legally authorised to construct septic tank or any other construction over the suit land and for grant of permanent injunction restraining the defendant from making construction of septic tank or any other construction over the suit land besides other reliefs. He submits that the learned trial court has been pleased to reject the said suit by the judgment dated 13.12.2008 and being aggrieved by the said judgment, the plaintiff has preferred Title Appeal No. 148 of 2008 and the learned appellate court by the judgment dated 10.08.2017 has been pleased to allow the appeal and remanded the Original suit to the learned court to decide the same afresh.
5. He further submits that the learned first appellate court has wrongly done so, in absence of any material of remand and further the first appellate court has not considered the admissions made by the plaintiff to the effect that near about the land of the appellant herein, the plaintiff was not having any land. He then submits that the learned first appellate court has not considered this aspect of the matter when he remanded the suit, which is against the spirit of Order-XLI Rule-24 of the CPC. He also submits that the learned first appellate court has not considered the documentary evidence. He submits that there is principle of remand and if the admission itself was not correct, the first appellate court was required to decide on merits. To buttress his argument, he relied in the case of Shivakumar & Ors. Versus Sharanabasappa & Ors., reported in (2021) 11 SCC 277, wherein the Hon'ble Apex Court in para-26.4 has held as follows:-
26.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=eISc8sUCYnQFBVP%2BVeJCODsxSSGFfAZKZ4NKBgv31uAuL%2B3TSy2ZCcTPBSYqQElH&caseno=MA/594/2017&cCode=1&cino=JHHC010233832017&state_code=7&appFlag=)
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