Whether appellate court should order remand of case in absence of application of plaintiff in that regard?

Striking features in the matter is that there was no such prayer
and/or application made by the Plaintiff to remand the matter. The learned

Judge, however, by overlooking the material placed on record and without
observing the position of law that there is an extra exceptional case, just
by observing that the property in dispute be measured and only after
measurement, the property can be identified. It is responsibility of the
Plaintiff to prefer an application for measurement or may file application in
the suit for measurement and identification of the property in dispute. This
situation and the procedure well within the knowledge of the Plaintiff even

at the relevant time. No such steps taken nor such objections/application
filed. Before the Appellate Court also no such ground raised. Therefore, if
Plaintiff himself failed to prove his own case and failed to identify his
property, the consequence should be dismissal of the suit as done in the
present case by the Trial court. The Plaintiff fails to prove his own case, the
dismissal of the suit therefore cannot be faulted with. However, order of
remand in this background certainly cause injustice and hardship to the
Defendants and this would amount to reopening of trial itself. Hence, the
order of remand required to be quashed and set aside.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1332 OF 2010

Pushpa Yashwant Bhosale VsPrakash Sadashiv Chavan


CORAM : ANOOP V. MOHTA, J.
DATE : OCTOBER 22, 2013.

Appellants-original Defendants being aggrieved by order dated 13 July 2010, passed by the learned Extra Jt. Ad-hoc District Judge,
Satara thereby Regular Civil Appeal is partly allowed filed by the Plaintiff-
Respondent. By the impugned order, judgment and decree passed by the
Lower Court is quashed and set aside and the matter is remanded to the
Civil Judge, Jr. Division, Phaltan with direction to give opportunity to both
parties for leading oral and documentary evidence in the light of
observations made in the order.
2
Once the learned Trial Judge, after considering all the
documents/material placed on record and by giving an opportunity to the

parties and by proper reasons after dealing with respective issues,
dismissed the suit, there is no ground to remand the matter by reopening
the trial itself, as no exceptional case is made out to remand the matter in
such fashion are the contentions of the Appellants. The learned counsel
appearing for the Appellants has read and referred the judgments of the
Supreme Court as well as of this Court viz. (1) P. Purushottam Reddy Vs.
Pratap Steels Ltd.1, (2) J. Lingaiah Vs. G. Hanumanthappa 2, (3) Sk.

Ibrahim Vs. Sk. Mehmood3, (4) Patel Sureshbhai Jashbhai Vs. Patel
Satabhai Mathurbhai4 and (5) Sayed Akbar Vs. Dhondiba Namdeo
Bhosale5, and basically contended that in the present facts and
circumstances of the case, there is no exceptional case to remand the
matter practically for a retrial. It is not the case that the Plaintiffs never
got any opportunity and/or hearing in the matter during the trial. The
learned Appeallate Court should have instead decided the matter in
accordance with law.
3
Striking features in the matter is that there was no such prayer
and/or application made by the Plaintiff to remand the matter. The learned
1
2
3
4
5
(2002) 2 SCC 686
2001 (10 SCC 751
AIR 2003 Bombay 357
1983 (3) SCC 294
2011 (1) ALL MR 791

Judge, however, by overlooking the material placed on record and without
observing the position of law that there is an extra exceptional case, just
by observing that the property in dispute be measured and only after
measurement, the property can be identified. It is responsibility of the
Plaintiff to prefer an application for measurement or may file application in
the suit for measurement and identification of the property in dispute. This
situation and the procedure well within the knowledge of the Plaintiff even

at the relevant time. No such steps taken nor such objections/application
filed. Before the Appellate Court also no such ground raised. Therefore, if
Plaintiff himself failed to prove his own case and failed to identify his
property, the consequence should be dismissal of the suit as done in the
present case by the Trial court. The Plaintiff fails to prove his own case, the
dismissal of the suit therefore cannot be faulted with. However, order of
remand in this background certainly cause injustice and hardship to the
Defendants and this would amount to reopening of trial itself. Hence, the
order of remand required to be quashed and set aside.
4
In view of above factual and the legal position, impugned
order dated 13 July 2010 is quashed and set aside, specifically order of
remand. However, the learned District Judge and/or appropriate Court to

hear the Appeal (Appeal No.260 of 2004) afresh by giving an opportunity
5
to the parties.
Appeal from Order is disposed of accordingly. All points are
kept open. No costs.

(ANOOP V. MOHTA, J.)

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