# Prem Raj & Ors v. Nagar Palika Shahjahanpur & Ors - **Citation:** (2022) 5 ILRA 1064 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-04-27 - **Case number:** First Appeal From Order No. 704 of 1996 - **Bench:** Dr. Kaushal Jayendra Thaker - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-raj-ors-v-nagar-palika-shahjahanpur-ors-48401 - **Pages:** 3 ## Headnote Law - Civil Procedure Code,1908 - O. 41 R. 24 - Power of the First Appellate Court - Remand of the matter to the trial court, when interference is warranted - Held, the appellate court is under obligation to decide by itself the lis between the parties unless it comes to the definite finding that the matter requires leading of evidence once again by the Court below - The remand of matter which has been decided by and between the parties has to be in rarest of the rare cases. (Para 6) Appeal partly allowed. (E-1) List of Cases cited:- ## Text 1064 INDIAN LAW REPORTS ALLAHABAD SERIES effective rebuttal to the charges being enquired into. 17. In the present case, as the inquiry officer failed to fix any date, place or time in the conduct of inquiry and the absence of any witness having been examined to support the charges levelled against the respondent-employee has led to a situation where the delinquent has been condemned unheard. The entire proceedings, being a violation of principles of natural justice and total disregard of procedural fairness, have rightly been held by the Tribunal to be vitiated. 18. The principal contention sought to be raised by the learned counsel for the petitioner that once the charges stand proved, there is no need of any formal oral inquiry or cross-examination of the witnesses, cannot be held to be sustainable for the reason that the same would amount to gross denial of a fair opportunity to the delinquent to place his defence and would amount to by-passing the procedure under the Rules, 1999, apart from being violative of the principles of natural justice. 19. The Tribunal upon taking notice of the fact that the respondent no. 2 (petitioner in the claim petition) had expired during the pendency of the claim petition held that no fruitful purpose would be served in remitting the matter for fresh enquiry and while allowing the petition and quashing the order of punishment, the appellate order and the revisional order, the Tribunal has rightly directed the benefits withheld due to the said punishment order, be refunded to the legal representatives of the deceased respondent no. 2. 20. No other ground has been urged on behalf of the petitioner to support the challenge to the order passed by the Tribunal. 21. The petition thus fails and is accordingly dismissed. ---------- (2022)05ILR A1064 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 27.04.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. First Appeal From Order No. 704 of 1996 Prem Raj & Ors. ...Appellants Versus Nagar Palika Shahjahanpur & Ors. ...Respondents Counsel for the Appellants: Sri R.S. Kushwaha, Sri Brijendra Kumar Ojha Counsel for the Resondents: Sri G.D. Pandey A. Civil Law - Civil Procedure Code,1908 - O. 41 R. 24 - Power of the First Appellate Court - Remand of the matter to the trial court, when interference is warranted - Held, the appellate court is under obligation to decide by itself the lis between the parties unless it comes to the definite finding that the matter requires leading of evidence once again by the Court below - The remand of matter which has been decided by and between the parties has to be in rarest of the rare cases. (Para 6) Appeal partly allowed. (E-1) List of Cases cited:- 1. Sunder Singh Vs Narain Singh; 1969 SCD 900 5 All. Prem Raj & Ors. Vs. Nagar Palika Shahjahanpur & Ors. 1065 2. Bhairab Chandra Nandan Vs Ranadhir Chandra Dutta, (1988) 1 SCC 383 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.) 1. Heard learned counsel for the appellants. None present for the respondents. 2. This appeal, at the behest of the claimant, challenges the judgement and decree dated 08.02.1995 passed by Additional Civil Judge, Shahjahanpur in Appeal No. 96 of 1988, partly accepting the appeal filed against the judgement and decree dated 28.03.1988 passed by Ist Additional Munsif Magistrate, Shahjahanpur. 3. The finding of the lower appellate court that the disputed property falls within the khasra no. 8 shumal no. 38 according to survey report is false and it is the result of misreading of evidence and wrong interpretation of the report of the survey conducted by the Civil Court Amin. 4. The Survey Amin has found that the boundary wall erected around the property which is mentioned in lettersKa, Kha, Ga, Gha contained old bricks whose age would be assigned above fifty years and in this way the claim of Nagar Palika is totally demolished and such claim is baseless and without any substance. 5. The question of law involved is whether the finding of lower appellate court that the property in suit belongs to Nagar Palika, Shahjahanpur could be sustained inspite of the fact that there is no evidence such as Khasra, Map property register or any other, document pertaining to establish. 6. The appellate court is under obligation to decide by itself the lis between the parties unless it comes to the definite finding that the matter requires leading of evidence once again by the Court below. The remand of matter which has been decided by and between the parties has to be in rarest of the rare cases. The appellate Court is under obligation to dispose of the case finally vide Order 41 Rule 24 of the Code of Civil Procedure, 1908. Record is sufficient to enable the appellate Court to pronounce judgement and, therefore, it will have to decide the matter finally. This is the mandate of the Apex Court spelled out as early as 1969 in the case of Sunder Singh v. Narain Singh, 1969 SCD 900, reiterated in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, (1988) 1 SCC 383. The Appellate Court no doubt has power to remand the matter under Order 41 Rule 23 and 23 A of C.P.C. but it has to follow certain conditions which are not satisfied in the case in hand. 7. In view of the above, this appeal is partly allowed. The first appellate Court shall decide the appeal on merits. However, as there was stay, the suit may not have been proceeded. This Court is not aware about the present status of the remanded matter. Hence, the first appellate Court shall first ascertain these facts and then decide the matter after hearing all the parties. 8. It is made clear that none is present for Nagar Palika since last seven years. ---------- 1066 INDIAN LAW REPORTS ALLAHABAD SERIES (2022)05ILR A1066 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.02.2022 BEFORE THE HON'BLE VIVEK KUMAR BIRLA, J. THE HON'BLE PRAKASH PADIA, J. Civil Misc. Review Application No. 379 of 2021 In Writ-A No. 5939 of 2021 Manoj Kumar Mahato & Ors. ...Petitioners Versus The Union of India & Ors. ...Respondents Counsel for the Petitioners: Sri Manoj Kumar Singh, Sri Anoop Singh, Sri Ashok Kumar Singh Counsel for the Respondents: Sri Rajnish Kumar, Sri Devendra Kumar Tripathi A. Practice & Procedure - Review Petition - Civil Procedure Code, 1908 - Section 114 read with Order 47 Rule 1 - An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mention in Order 47 Rule 1 CPC itself. The power of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review. (Para 12) Review Application Rejected. (E-10) List of Cases cited:- 1. Patel Narshi Thakershi Vs Pradyumansinghji Arjunsinghji (1971) 3 SCC 844 2. Rajah Kotagiri Venkata Subbamma Rao Vs Rajah Vellanki Venkatrama Rao (1899-1900) 27 IA 197 3. Hari Shankar Pal Vs Anath Nath Mitter 1949 FCR 36 4. Moran Mar Basselios Catholicos Vs Mar Poulose Athanasius AIR 1954 SC 526 5. Thungabhadra Industries Ltd. Vs Govt. of A.P. AIR 1964 SC 1372 6. Aribam Tuleshwar Sharma Vs Aribam Pishak Sharma (1979) 4 SCC 389 7. Shivdeo Singh Vs St. of Punjab AIR 1963 S.C. 1909 8. K. Ajit Babu Vs U.O.I. (1997) 6 SCC 473 9. Parsion Devi Vs Sumitri Devi (1997) 8 SCC 715 10. Haridas Das Vs Usha Rani Banik (2006) 4 SCC 78 11. Ajit kumar Rath Vs St. of Orissa (1999) 9 SCC 596 12. St. of Har. Vs M.P. Mohla (2007) 1 SCC 457 13. Gopal Singh Vs St. Cadre Forest Officers' Assn. (2007) 9 SCC 369 14. Lily Thomas Vs U.O.I. (2000) 6 SCC 224 15. Inderchand Jain Vs Motilal (2009) 14 SCC 663 16. T.C. Basappa Vs T. Nagappa AIR 1954 SC 440 17. Hari Vishnu Kamath Vs Ahmad Ishaque AIR 1955 SCC 233 18. Meera Bhanja Vs Nirmala Kumari Choudhary (1995) 1 SCC 170 19. State of West Bengal & Ors. Vs Kamal Sengupta & anr. (2008) 8 SCC 612 20. Gopabandhu Biswal Vs Krishna Chnadra Moohanty (1998) 4 SCC 447 21. Chhajju Ram Vs Neki AIR 1922 PC 112 (Delivered by Hon'ble Prakash Padia, J.) Order on Delay Condonation Application No.Nil of 2021