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.. Gujarat High Court

Case Number:Second Appeal No. 139 of 2013 and Civil Application No. 6996 of 2013 in Second Appeal No. 139 of 2013
Party Name:Jadeja Tapubha Harising and Ors. Vs Jadeja Vajubha Vaghji and Ors.
Counsel:For Appellant: Bipin I. Mehta, Advocate and For Respondents: Nirav Sanghvi, Advocate for Ashish M. Dagli, Advocate
Judges:Rajesh H. Shukla, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Order XLI Rules 23, 23(A), 25, 27, 27(1)(B), 28; Section 100
Judgement Date:March 24, 2017
Court:Gujarat High Court
 
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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 made in paragraph 9:

    This clearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under O. XLI R.27, Code of Civil Procedure. The High Court has quite clearly not proceeded under O. XLI R. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit.

    Learned Advocate Shri Mehta therefore submitted that the powers under Order 41 Rule 27 cannot be resorted in such a fashion, and therefore, the present Second Appeal may be allowed.

  4. Learned Advocate Shri Sanghvi for learned Advocate Shri Ashish M. Dagli for the Respondent however referred to the background of the facts and submitted that as observed in the judgment of the appellate court as well as the trial court that the issue is with regard to redemption of mortgage while appreciating the issue, the first appellate court has made an observation that the first appellate court is not in a...

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