Saroj Kumar v. Kamleshwar Prasad @ Kamlesh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Miscellaneous Appeal No. 103 of 2015 {Arising out of order dated 31.08.2015 passed in Civil Appeal No. 5-A/2015 by the Additional District Judge (FTC) Dhamtari}

1. Saroj Kumar S/o Ganesh Ram Ganjir, aged about 46 years.

2. Tejesh Kumar S/o Ganesh Ram Ganjir, aged about 41 years.

3. Hemshankar S/o Ganesh Ram Ganjir, aged about 33 years. All R/o village Irra, Tahsil Kurud, District Dhamtari, Chhattisgarh. ---- Appellants

Versus

1. Kamleshwar Prasad @ Kamlesh S/o Gaindu Ganjir, aged about 47 years, R/o village Irra, Tahsil Kurud, District Dhamtari, Presently resident at Qtr. No. 210, A-1, MA Type Hospital, Sector Dallirajhara, District Balod, Chhattisgarh.

2. Ganesh Ram S/o Gaindu Ram, aged about 33 years, R/o village Irra, Tahsil Kurud, District Dhamtari, Chhattisgarh.

3. State of Chhattisgarh, Through Collector, Dhamtari, District Dhamtari Chhattisgarh. ---- Respondents For Appellants : None.

For Respondents 1 : Shri R.K.Pali, Advocate.

For Respondent/State : Shri UNS Deo, Government Advocate. Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice Judgment on Board 29/06/2018 1.

None appears on behalf of the Appellants.

2.

Heard the learned counsel for the Plaintiff-Respondent No. 1 and the learned Government Advocate.

3.

Ganesh Ram-Defendant No.4 and Kamleshwar Prasad @ KamleshPlaintiff are the sons of Late Gaindu Ram. Defendants No. 1 to 3 are the children of Ganesh Ram-Defendant No. 4. Gaindu Ram executed a Will bequeathing assets to Defendants No. 1 to 3. The Plaintiff/Respondent

No.1 filed the suit seeking declaration as against that testamentary instrument.

4.

The trial Court dismissed the suit holding that the Plaintiff did not produce the original Will but had produced only its photocopy. The lower appellate Court passed the impugned order of remand taking into consideration the additional evidenced placed on record through an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, whereby the Plaintiff brought on record the certified copy of the Will executed by Gaindu Ram. The question of proof of Will apart, the Plaintiff's burden to prove the grounds to set aside that Will had to be adjudicated in accordance with the provisions of the Evidence Act and the provisions of the CPC. It was, obviously, therefore, that the lower appellate Court was inclined to make the impugned order of remand thereby paving way for the parties on both sides to adduce evidence on all aspects of the case. 5.

While there is no illegality or impropriety in the lower appellate Court having made the order of remand as a result of first appeal under Section 96 of the CPC, I am of the view that it would be appropriate to impose an order of costs on the Plaintiff since the order of remand was necessitated primarily on account of the Plaintiff's deficit in tendering evidence before the Trial Court. Therefore, while affirming the impugned order of remand, the 1st Respondent/Plaintiff is liable to be saddled with an appropriate order for cost.

6.

In the result, while dismissing this appeal on all other grounds, the impugned order of remand is made conditional on the 1st Respondent/Plaintiff paying to Defendants No. 1 to 3 an amount of Rs.15,000/- as costs for all those three Defendants taken together. Such amount shall be remitted before the trial Court within a period of four

weeks from today failing which the order of remand made by the lower appellate Court will stand recalled. On deposit of such amount of costs, the Court below will proceed to adjudicate in terms of the directions contained in the impugned order of remand.

7.

The parties are directed to mark their appearance before the lower appellate Court on 30.07.2018.

Sd/- (Thottathil B. Radhakrishnan) CHIEF JUSTICE Amit