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Vijai Raj Vs. Bhanwari Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 369 of 1969
Judge
Reported in1969WLN287
AppellantVijai Raj
RespondentBhanwari Devi and anr.
Excerpt:
.....judgment. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given..........and given its own findings.3. the lordships of the supreme court recently observed in a case remanded by the high court for writing a more satisfactory judgment. if the high court was of the view that in reaching the conclusion the district court had misconceived or mis-read the evidence or had ignored important evidence bearing on the question to be decided or had otherwise acted contrary to law, the high court was bound to decide the question for itself. the high court had no power to remand the case to the district court for writing a more satisfactory judgment.4. i accordingly set aside the order of remand and direct the district judge to re-hear the appeal and decide it on merits in accordance with law. in the circumstances of the case, i leave the parties to bear their own.....
Judgment:

Jagat Narayan, J.

1. A preliminary objection has been taken that no miscellaneous appeal lies against the order of remand as it is not under Order 41, Rule 23 C.P. C. The reply is that as an order for the refund of court fee has been made, an appeal is maintainable. Reliance is placed on Ratan Raj V. Kripashankar ILR (195555) 55 Raj. 895. That decision is not applicable as this order does not purport to be under Order 41, Rule 23 C.P.C. The preliminary objection is upheld. But on the prayer of the learned Counsel for the appellant, this is treated as a revision application.

2. The only provision for remanding a case in appeal is contained in Order 41, Rule 23 C.P.C., which is not applicable to the present case as the trial court decided all issues and recorded its findings on all of them. The judgment of the trial court is in accordance with Order 20, Rule 4(2) C.P.C. which lays down that the judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. As such, the appellate court had no jurisdiction to remand the case under Section 151 C.P.C. The power to remand a case under Section 151 is to be used very sparingly. The appellate court should have considered the entire oral and documentary evidence and given its own findings.

3. The Lordships of the Supreme Court recently observed in a case remanded by the High Court for writing a more satisfactory judgment. If the High Court was of the view that in reaching the conclusion the District Court had misconceived or mis-read the evidence or had ignored important evidence bearing on the question to be decided or had otherwise acted contrary to law, the High Court was bound to decide the question for itself. The High Court had no power to remand the case to the District Court for writing a more satisfactory judgment.

4. I accordingly set aside the order of remand and direct the District Judge to re-hear the appeal and decide it on merits in accordance with law. In the circumstances of the case, I leave the parties to bear their own costs In this revision application.


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