Mohd. Salim, S/o Late Mohammad Saeed v. Mohd. Vakil, S/o Late Basir Mohammad
2025-07-18
Sanjay K Agrawal
body2025
DailyLaw.ai
ORDER : Sanjay K. Agrawal, J. 1. The short question involved in this writ petition is, whether the remand court can entertain the application under Order 7 Rule 14 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) beyond the terms of the order of remand passed by the second appellate Court? 2. The petitioners herein/defendants No.1a to 1c have filed this writ petition questioning the order dated 22-1-2024 passed by the 4 th Civil Judge Class-I, Bilaspur in Civil Suit No.33A/1999 by which the application filed by the plaintiffs/respondents No.1 & 2 herein under Order 7 Rule 14 of the CPC, has been allowed subject to cost of Rs. 300/-. 3. The plaintiffs’ suit was dismissed by the trial Court which was upheld by the first appellate Court also, but in second appeal preferred by the plaintiffs, this Court by its judgment & decree dated 2-1-2023 decreed the suit and remanded the matter subject to the following directions: - “51. Accordingly, the appeal deserves to be and is allowed in part and the judgment and decree passed by the learned trial Court, affirmed by the First Appellate Court and the cross objection filed by defendant No. 1, are set aside. The matter is remitted back to the learned trial Court to decide except issue No. 5 afresh with following directions:- (1) The learned trial Court will allow the documents to be taken on record filed by the plaintiff along with application under Order 41 Rule 27 of C.P.C. The amendment as sought in the application filed befoe the First Appellate Court will also be allowed to be incorporated. The defendants will also be given liberty to file additional document, if so advised and also liberty to file amendment application in their written statement. The documents taken on record, does not mean that this Court has examined the correctness and genuineness of the documents and it is for the trial Court to examine it and to decide it. (2) Since this Court has given finding that the finding recorded by the trial Court regarding gift is not proved as the judgment and decree of earlier suit Ex. P/8 & P/9 is not binding upon the plaintiff. The defendants are free to prove the plea of gift afresh by recording evidence in accordance with law.
(2) Since this Court has given finding that the finding recorded by the trial Court regarding gift is not proved as the judgment and decree of earlier suit Ex. P/8 & P/9 is not binding upon the plaintiff. The defendants are free to prove the plea of gift afresh by recording evidence in accordance with law. (3) Since this Court has also recorded finding that Tahrinama cannot be negatived by this Court in view of Section 58 of the Succession Act. Its affect shall be considered by the trial Court as per the evidence, material placed on record after remand of the matter. (4) Since the matter is quite old, it is directed that the learned trial Court shall make an endeavour to complete the trial within outer limit of one and half year from the date of first date of appearance. (5) The parties are directed to appear before the trial Court on 2 nd March, 2023 (6) The record be sent forthwith. (7) It is also directed to Registry of this Court, since it is old case, the record of the case, shall be preserved by scanning and along with original record, scanned record be also sent to the trial Court.” 4. Thereafter, the plaintiffs filed application under Order 7 Rule 14 of the CPC which has been allowed by the trial Court and which was opposed by the defendants that the trial Court cannot go beyond the decree of the second appellate court and cannot admit the documents which is subject to challenge in the instant writ petition. 5. Mr. Prafull Bharat, learned Senior Counsel appearing for the petitioners herein/defendants No.1a to 1c, would submit that the trial Court is hearing the suit pursuant to the limited remand made by the second appellate Court, therefore, the remand court cannot go beyond the directions of the second appellate Court and as such, the impugned order is liable to be set aside, which is opposed by Mr. Pritam Tiwari, learned counsel appearing for respondents No.1 & 2 herein/plaintiffs. 6. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection. 7.
Pritam Tiwari, learned counsel appearing for respondents No.1 & 2 herein/plaintiffs. 6. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection. 7. Admittedly, as shown in paragraph 51 of the judgment delivered by the second appellate Court, the second appellate Court has remanded the matter to the trial Court with a specific direction and there is no further direction to the trial Court to entertain the fresh application for amendment filed by the plaintiffs, therefore, the trial Court could not have allowed the application for amendment. In this regard, the decision of the M.P. High Court in the matter of Rukhmanand v. Deenbandh, 1971 Jab LJ (SN) 159 may be noticed herein profitably in which it has been held by the High Court of Madhya Pradesh as under: - “It is settled law that when a suit is remanded for a decision afrsh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order, or enter into questions falling outside its limit. There was, therefore, no jurisdiction in the learned trial Judge to allow an amendment of the pleadings which was outside the scope of the remand order.” 8. In view of the aforesaid decision of the High Court of Madhya Pradesh in Rukhmanand (supra), the remand court could not have gone beyond the orders/specific direction of the second appellate Court and could not have entertained the application under Order 7 Rule 14 of the CPC. Accordingly, the impugned order dated 22-1-2024 passed by the 4 th Civil Judge Class-I, Bilaspur in Civil Suit No.33A/1999 is set aside and the trial Court is directed to proceed strictly as per the remand order passed by the second appellate Court. 9. With the aforesaid observation and direction, the writ petition stands finally disposed of but with no order as to cost(s).