Second Appeal No. 139 of 2013 and Civil Application No. 6996 of 2013 in Second Appeal No. 139 of 2013. Case: Jadeja Tapubha Harising and Ors. Vs Jadeja Vajubha Vaghji and Ors.. High Court of Gujarat (India)

Case NumberSecond Appeal No. 139 of 2013 and Civil Application No. 6996 of 2013 in Second Appeal No. 139 of 2013
CounselFor Appellant: Bipin I. Mehta, Advocate and For Respondents: Nirav Sanghvi, Advocate for Ashish M. Dagli, Advocate
JudgesRajesh H. Shukla, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Order XLI Rules 23, 23(A), 25, 27, 27(1)(B), 28; Section 100
Judgement DateMarch 24, 2017
CourtHigh Court of Gujarat (India)

Judgment:

Rajesh H. Shukla, J.

  1. The present Second Appeal has been filed by the Appellants/Original Plaintiffs under Section 100 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 1 of 2001 by the learned Additional District Judge, Kachchh at Bhuj dated 17.4.2013 remanding the matter back to the trial court for deciding afresh Civil Suit No. 39 of 1993, posing the substantial questions of law as stated in the Appeal.

  2. Heard learned Advocate Shri Bipin I. Mehta for the Appellants and learned Advocate Shri Nirav Sanghvi for learned Advocate Shri Ashish M. Dagli for the Respondents.

  3. Learned Advocate Shri Mehta referred to the background of the facts and the judgment of the trial court as well as the appellate court and submitted that the first appellate court has committed an error in remanding back the suit for trial afresh after the fresh evidence. He submitted that this is not permissible in view of the provisions of Order 41 Rule 27 and Rule 28 of the Code. He pointedly referred to Order 41 Rule 27(1)(B). He therefore submitted that the entire suit should not have been remanded for trial afresh.

    In support of his contention he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of The Municipal Corporation of Greater Bombay v. Lala Pancham and ors. reported in AIR 1965 SC 1008 and referred to the observations...

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