# Ram Kumar Awasthi v. Rajeshwar & Ors

- **Citation:** (2021) 11 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-15
- **Case number:** First Appeal From Order No. 1092 of 2008
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-awasthi-v-rajeshwar-ors-46517
- **Pages:** 4

## Headnote

Civil Law - Civil Procedure Code,1908 - O.41 R.
23, O.41 R.25 - Remand of case by Appellate
Court - first appellate court remanded the
matter with a direction to the trial court to
issue additional commission for assessing the
value of the construction after deducting
depreciation value and after obtaining the
Amin report about market value of the land as
well as the construction and after giving
opportunity of evidence to both the parties,
determine the valuation of the plaintiff's share
- Held - There was no sufficient evidence
before the first appellate court to determine
the issues involved and hence, the order of
remand passed by the first appellate court is
well justified. (Para 8, 9, 10)

Allowed. (E-5)

Cases Relied on:

## Text

11 All. Ram Kumar Awasthi Vs. Rajeshwar & Ors.
1111
contemplating any such situation would go
contrary to the very legislative object behind
introduction of Section 163A of the Act, namely,
final compensation within a limited time-frame
on the basis of the structured formula to
overcome situations where the claims of
compensation on the basis of fault liability were
taking an unduly long time. In fact, to
understand Section 163A of the Act to permit
the Insurer to raise the defence of negligence
would be to bring a proceeding under Section
163A of the Act on a par with the proceeding
under Section 166 of the Act which would not
only be self-contradictory but also defeat the
very legislative intention.

9. For the aforesaid reasons, we
answer the question arising by holding that in a
proceeding under Section 163A of the Act, it is
not open for the Insurer to raise any defence of
negligence on the part of the victim."

18. The aforesaid judgment was also
referred and followed by the Supreme Court in
Shivaji and another (Supra).

19. As the negligence of the driver of the
offending vehicle is not to be pleaded or proved
in proceedings under Section 163-A of the Act
and under Section 163-A, the liability to pay
compensation is of the owner and the Insurance
Company, the proceedings under Section 163-A
of the Act, 1988 will not be vitiated merely
because the driver of the Vehicle was not
impleaded as a party in the claim case.

20. For the aforesaid reasons, the appeal
lacks merit and is dismissed. Interim order, if
any, passed in favour of the appellant, is
vacated.
----------
(2021)12ILR A1111
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2021
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

First Appeal From Order No. 1092 of 2008

Ram Kumar Awasthi ...Appellant
Versus
Rajeshwar & Ors. ...Respondents

Counsel for the Appellant:
Sri Ramendra Asthana, Sri M.L. Maurya

Counsel for the Respondents:
Sri Bimal Prasad, Sri K.N.Saxena, Sri Pankaj
Saksena, Sri Vijay Kumar Ojha, Sri Vijay Prakash
Pandey , Sri Anupam Laloriya

Civil Law - Civil Procedure Code,1908 - O.41 R.
23, O.41 R.25 - Remand of case by Appellate
Court - first appellate court remanded the
matter with a direction to the trial court to
issue additional commission for assessing the
value of the construction after deducting
depreciation value and after obtaining the
Amin report about market value of the land as
well as the construction and after giving
opportunity of evidence to both the parties,
determine the valuation of the plaintiff's share
- Held - There was no sufficient evidence
before the first appellate court to determine
the issues involved and hence, the order of
remand passed by the first appellate court is
well justified. (Para 8, 9, 10)

Allowed. (E-5)

Cases Relied on:

1. Ram Bali Singh & ors. Vs Ram Sakal (F.A.F.O. No.
560 of 1989-Decided on March 13, 1989

2. Chaturghun Vs Dhanpati Rai & ors. 2007 (69) ALR
861

(Delivered by Hon'ble Syed Aftab Husain Rizvi, J.)

1. This First Appeal From Order has been
filed against the judgment and order dated
6.12.2007 passed by the First Appellate Court of
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional district Judge, Court No. 9/Special
Judge, E.C. Act, Shahjahanpur in Civil Appeal
No. 25 of 2003 Raj Kumar and another Vs.
Rajeshwar and others.

2. The first appeal was filed against the
judgment and final decree dated 31.5.2003
passed in Original Suit No. 373 of 1979 Ram
Kumar Vs. Rajeshwar by the Court of Civil
Judge (Sr. Div.), Shahjahanpur.

3. The trial court in the proceeding of final
decree of O.S. No. 373 of 1979 in compliance of
the judgment and order of the First Appellate
Court dated 19.9.2001 by which the matter was
remanded to the trial court with the observation
that the trial court shall make valuation of the
share of defendants in such manner as he thinks
fit and directed the sale of share to such
defendants-appellants and make a necessary and
proper directions in that behalf as envisaged
under section 4 of the Partition Act, issued a
commission to assess the valuation and on the
basis of commission report has determined the
value of the half share of the plaintiff as Rs.
1,74,000/- and further ordered defendant to
deposit the amount within two months for
execution of sale deed.

4. Learned counsel for the appellant
mainly contended that the appellate court can
remand the matter only according to provision
of Order 41 Rule 23 and Rule 25 of the C.P.C.
The conditions of aforesaid provisions are not
fulfilled in the present matter and hence, the
first appellate court should not have remanded
the matter but instead himself has decided the
points involved after taking evidence. Learned
counsel further contended that first appellant
court has all the powers of taking additional
evidence and the first appellate court should
have exercised that power and after taking
additional evidence should have decided the
matter finally. The first appellate court has
failed to exercise the jurisdiction vested in it
and hence, the impugned order is not
sustainable .

5. Learned counsel for the appellant
placed reliance on the judgment in the case of
Ram Bali Singh and others Vs. Ram Sakal
(F.A.F.O. No. 560 of 1989-Decided on March
13, 1989) and Chaturghun Vs. Dhanpati Rai
and others [2007 (69) ALR 861].

6. On the other hand; learned counsel for
the respondents contended that the Amin
report on the basis of which the trial court has
fixed the valuation was objected by the
plaintiff-appellant himself before the trial
court. In his objection he has disputed the
market value of the land as well as the
constructions thereupon. Learned counsel
further contended that it is not function of the
appellate court to decide objections against
Amin Report. The factual aspect as taken in
para 5 of the aforesaid objections can only be
determined by the trial court. Learned counsel
for the appellant further contended that Under
Order 41 Rule 24 C.P.C. the appellate court
may after resettling the issue if necessary
finally determined the suit if the evidence
upon the record is sufficient to enable the
appellate court to pronounce the judgment.
There is no sufficient evidence on record to
enable the appellate court to pronounce the
judgment, hence, the first appellate court has
rightly remanded the matter to the trial court
for taking necessary evidence to determine the
points in issue. The order of the first appellate
court is just and proper and appeal has no
merits.

7. By the impugned order the first
appellate court has remanded the matter with a
direction to the trial court to issue additional
commission for assessing the value of the
construction after deducting depreciation value
and after obtaining the Amin report about
market value of the land as well as the
11 All. Ram Kumar Awasthi Vs. Rajeshwar & Ors.
1113
construction and after giving opportunity of
evidence to both the parties determine the
valuation of the plaintiff's share. The first
appellate court has also observed that the market
value for sale and purchase can be determined
on the basis of prevalent circle rate and after
taking evidence of the parties on the point. it has
also observed that Amin has assessed the value
of the land on the basis of neighbours statements
about the rate of the land. Amin has also not
assessed the quantity of construction material
used in the construction, hence, the trial court
ought to obtain the objections on the Amin
report and after giving opportunity of evidence
to both the parties should have determined the
valuation of the disputed property on the date on
which the defendant has offered to purchase the
disputed property. On the aforesaid grounds the
first appellate court has remanded the matter and
has given directions as mentioned above.

8. From the material on record it appears
that the trial court has only got the report of
Amin about the value of the disputed property
which has construction as well. The plaintiff
has filed detailed objection against it and some
of the objections are factual in nature. Learned
trial court without taking into consideration the
relevant basis of valuation and without giving
any opportunity of evidence to the parties has
determined the valuation of the property solely
on the basis of Amin report. It is also clear that
additional Amin report is required in the matter
and parties have also to be given opportunity of
producing evidence on the point of valuation as
observed by the learned appellate court. There
was no sufficient evidence before the first
appellate court to determine the issues involved
and hence, the order of remand passed by the
first appellate court is well justified. The order
41 Rule 23 A C.P.C. also provides that if the
suit is decided otherwise on preliminary point
and decree reversed in appeal and retrial is
necessary the appellate court have the same
powers as it has under Rule 23. In this case on
the points involved, evidence will be required,
so it will be in form of a re-trial.

9. In the light of the aforesaid provision
also the order of remand of the first appellate
court is just.

10. In Chaturghun Vs. Dhanpati Rai
and others (Supra) the matter was remanded
with categorical direction to the lower court to
give opportunity to the plaintiff to file the map
of the consolidation proceeding so as to prove
the existence of ''Nali' and further to clarify the
dimensions, area and number of the public land
if any left out in the consolidation proceeding
for the purpose of Nali. On the aforesaid this
court has held that the purpose of remand was
to enable the plaintiff to adduce sufficient
evidence to fill the lacunas which have been
pointed out by the lower appellate court and
was not permissible under law. While in Ram
Bali Singh and others Vs. Ram Sakal
(Supra) the matter was remanded as the
appellate court found that case be decided as a
fresh after getting its survey map prepared. On
this it was held that the appellate court can get
the survey map prepared itself remand only for
this purpose amounts to illegal exercise of
jurisdiction. In the present case as observed
above additional commission is to be issued,
objections are to be invited against the Amin
Report and the parties are to be provided
opportunity of leading evidence and thereafter
matter can be decided. So the rulings cited by
the learned counsel for the appellants are
distinguishable.

11. From the above discussion it is clear
that the impugned order is just and reasonable
and there is no ground to interfere in it. The first
appeal is liable to be dismissed.

12. Accordingly, the First Appeal From
Order is dismissed.
----------
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)12ILR A1114
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Habeas Corpus W.P. No. 9307 OF 2020

Master Devansh Agarwal (Detenue)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Arun Sinha, Siddhartha Sinha

Counsel for the Respondents:
Sri Anurag Singh Chauhan (Govt. Adv.), Deepak
Agarwal, Gavrav Mishra, Lalit Mohan Singh, Mr. Nirmit
Srivastava, Mr. Prabhjit Jauhari, R.P. Shukla, Vivek
Sonkar

Civil Law - Custody of Minor - Constitution of
India, Article 226 - Habeas Corpus Petition -
Illegal abduction of minor by the father from
custody of mother - Mother sought custody of
her minor child from father - Held - act of the
father of the child of deceitfully taking away
the child out from custody of mother amounts
to parental kidnapping which is not only
illegal but criminal also - as the child has been
illegally snatched away from mother, writ of
habeas corpus petition maintainable - Bench
of High Court Allahabad, at Lucknow has
jurisdiction as the child was born in Lucknow
and resided there with the mother till he was
fraudulently taken away by father from
Lucknow
to
Dhanbad
-
father,
who
fraudulently took away the custody of the
child,
from
an
area
falling
within
the
jurisdiction of the court to Dhanbad, cannot
take stand that petition is not maintainable at
Lucknow - in the present case several orders
of the court with regard to facilitate the
meeting of the mother with the child, were
flouted over by the father - there is reason to
believe that father in furtherance of his malice
towards mother will brain wash the child
towards his mother that would not be in the
interest and welfare of the child - mother is
competent enough to take care and upbring
the child with love and affection - mother
deserves
to
have
custody
of
the
child
removing the same from the father - father
will be at liberty to get finally decided his
rights of exclusive custody as guardian by the
family court or court of Guardians and Wards
Act (Para 39, 45, 49, 84, 85)

Disposed Off. (E-5)

Cases Relied on:

1. Roxann Sharma Vs Arun Sharma (2015) 8 SCC 318

2. Meenakshi & anr. Vs St. of U.P. & ors.(2020) 143
ALR 841

3. Shigorika Singh Thru. her mother Vs Dr.
Abhinandan Singh & ors. Habeas Corpus No.8820 of
2020 (All.) decided on 22.2.2021

4. Vahin Saxena (Minor Corpus) & anr. Vs St. of U.P.
& ors. Habeas Corpus No.467 of 2021 (All.) decided
on 27.8.2021

5. Reshu @ Nitya & ors. Vs St. of U.P. & ors. Habeas
Corpus No.9 of 2020 (All.) decided on 22.10.2021

6. Ruchi Majoo Vs Sanjeev Majoo (2011) 6 SCC 479

7. Anil Kumar Pradhan & ors. Vs Madhabi Pradhan
FAO No. 254 of 2014 decided on 15.10.2015

8.Tejasvini Gaud & ors. Vs Shekhar Jagdish Prasad
Tewari & ors. (2019) 7 SCC 42

9. Kusheshwar Prasad Singh Vs St. of Bihar & ors.
(2007) 11 SCC 447

10. Mrs. Elizabeth Dinshaw Vs Arvind M. Dinshaw &
anr. (1987) 1 SCC 42

11. Gippy Arora Vs St. of Pun. & ors.(2008) SCC
Online P & H 1483

12. Githa Hariharan Vs Reserve Bank of India and
Vandana Shiva Vs Jayanta Bandopadhyaya (1999) 2
SCC 228

13. Yashita Sahu Vs St. of Raj. (2020) 3 SCC 67