This appeal has been filed under Order 43 Rule 1(u) of CPC
against the judgment dated 20.01.2015 passed by the Fourth
Additional District Judge, Gwalior, in Civil Appeal No.24-A/2013,
whereby the learned First Appellate Court has remanded the matter
back to the learned trial Court.
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 7/8/2025
10:10:21 AM
2
M.A. No.110/2015
2. It is submitted by learned counsel for the appellants that
contrary to the provisions of Order 41 Rule 23 A of CPC, learned
First Appellate Court (hereinafter for convenience shall be referred
as “FAC”) has remanded the matter back to the learned trial Court
which is erroneous. The learned FAC has not decided the appeal on
merits. Order 6 Rule 4(a) and Order 1 Rule 3 B of CPC are not
applicable in the present case as State has already been a party in
this case and State itself has filed the appeal before the learned
FAC. Hence, on the basis of the aforesaid provisions, the remand of
the case to the trial Court is not said to be lawful. The aforesaid
provisions are regarding the Madhya Pradesh Ceiling on
Agricultural Holding Land, and therefore, are not applicable in the
present case. They only apply to a case filed for specific
performance of contract in which the agricultural land is involved.
The present case is a suit for declaration and permanent injunction
against the State. Hence, both the provisions have already been
complied with at the time of filing of the suit. The defence has
never raised such objection in the written statement also. No such
type of objection has been recorded earlier by the defence. The
learned FAC suo motu contrary to the law on the anvil of aforesaid
provisions has remanded the matter back. The learned trial Court
has rightly decreed the suit by giving lawful findings on issues No.1
to 3, but in that respect learned FAC has not given any finding. As
far as applications under Order 41 Rule 27 and under Order 6 Rule
17 of CPC are concerned, no new document or pleading is filed or
proposed to be incorporated, rather these documents have already
been considered in the form of certified copy of it by learned trial
Court and the proposed amendment is not at all necessary because
the existing pleadings covers the facts proposed to be incorporated
through amendment. The conditions under the provisions of Order
41 Rule 27 of CPC have not been fulfilled by the defendants/State
before the learned FAC. Therefore, such applications could not have
been allowed and prayed for setting aside the impugned judgment
of remand by learned FAC.
[ad_1]
Source link