Devendra Kumar Sinha & Ors. v. Zaibu Nissa Khtoon & Ors.

For the Appellants : Mr. S.N.Roy , Advocate For the Respondents : xxxx ----- 27/14.09.2012 This appeal has been preferred under Order 43 Rule 1(u) of the Code of Civil Procedure against the order of remand. The plaintiffs are the appellants. They had filed suit being T.S. no.60/5 of 1965/68 in the court of Sub-Judge, Hazaribagh. The suit was decreed exparte. Against the exparte decree, the defendants had filed Misc. case under Order 9 Rule 13 CPC for setting aside the exparte decree. They also preferred an appeal being title Appeal no.07 of 1969. Subsequently, Misc. case was also dismissed. The defendants then preferred appeal against the said dismissal of Misc. case, which was registered as Title Appeal no.24 of 1969. Both the said appeals were heard together and had been disposed of by the impugned judgment. The judgment of learned lower appellate court has been assailed on the ground that learned lower appellate court has committed an error in taking of both the appeals together and disposing of the same by the common judgment.

The further ground is that instead of disposing of the appeals on merit, learned lower appellate court has erroneously remanded the case to learned trial court. I have heard learned counsel for the appellants and perused the records. It is an admitted position that the plaintiffs' suit was decreed exparte. Against that decree, the defendants had filed Title Appeal no.07 of 1969. The defendants, had also preferred a petition under Order 9 Rule 13 for setting aside the exparte decree by way of abandoned precaution. The said petition was also dismissed. The defendants had then preferred appeal against that order dismissing their petition. Since in both the appeals, parties were common and the appeals arose out of the same title suit, the same were taken up together and disposed of by common judgment. I find no illegality in disposal of two appeals by the impugned judgment. As regards, the contention that learned lower appellate court could have decided the appeal on merit instead of remanding .2. the suit, I find no substance in the submission of learned counsel for the appellants.

Learned lower appellate court has remanded the suit for hearing afresh and taking evidences. Learned lower appellate court has considered and found that several facts were to be proved and discussed including the application of section 52 of the T.P. Act. But the same were missing in the judgment of learned trial court. Learned lower appellate court has thought it expedient in the interest of justice to afford opportunity to the parties for bringing on record the relevant evidences in support of their cases; for proper adjudication of the controversies between the parties. I find no infirmity or illegality in the said view and in the impugned judgment of learned lower appellate court. This Misc. Appeal is, accordingly, dismissed. ( Narendra Nath Tiwari, J.) s.b.