YUSUF TAIYAB JUMMANIversusCHIEF OFFICER AND ANR

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION
         Digitally
         signed by
         VASANT
VASANT   ANANDRAO
ANANDRAO IDHOL               APPEAL FROM ORDER NO.977 OF 2019
IDHOL    Date:
         2026.02.02                       WITH
         10:25:39
         +0530              INTERIM APPLICATION NO.1612 OF 2019


               Yusuf T. Jummani, since deceased
               through L.Rs. - Imran Haji Y. Jummani               …Appellant
                     V/s.
               Chief Officer, Jawhar Municipal Council & Anr.      ...Respondents



               Mr.Chintan Y. Shah for the Appellant.

               Mr.Suraj N. Naik i/b Mr.R.D. Suryawanshi for the Respondent No.1.

                            CORAM : ARIF S. DOCTOR, J.
                            DATE : 28TH JANUARY, 2026.

               P.C. :-


                      1. The captioned Appeal from Order challenges the order dated

                          9th August 2019 passed by the District Judge–10, Assistant

                          Sessions Judge, Thane, in Civil Appeal No. 92 of 2013.

                          Respondent No. 2, though duly served, is not present. In

                          these circumstances, the Appeal is taken up for hearing.


                      2. I have heard Mr. Shah, the learned counsel appearing for the



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           Appellant and Mr. Naik, the learned counsel appearing for

           Respondent No. 1, Municipal Council. The principal

           grievance of the Appellant is that the First Appellate Court,

           by the impugned order, has mechanically remanded the

           matter to the Trial Court without framing any points for

           determination or recording findings on the issues that arose

           for consideration in the First Appeal. It was thus that Mr.

           Shah submitted the impugned order was bad in law and must

           be set aside.


       3. In support of his contention that the impugned order was ex

           facie bad in law, Mr. Shah placed reliance upon the decision

           of the Hon’ble Supreme Court in Municipal Corporation,

           Hyderabad v. Sunder Singh1, and in particular paragraphs

           18, 32 and 33 thereof, to point out that the Hon’ble Supreme

           Court had held that an order of remand under Order XLI Rule

           23 or Rule 23-A of the Code of Civil Procedure, 1908 cannot

           be passed routinely, and that the Appellate Court is duty-

           bound to decide the Appeal on merits where the conditions

           precedent for remand are not satisfied.

1 (2008) 8 SCC 485

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        4. He then further submitted that the decision in Municipal

            Corporation, Hyderabad (supra) has been followed by this

            Court in Khanderao Damu Pingale & Ors. v. Shahadu

            Walu Pingale & Ors.2. Basis this, Mr. Shah submitted that

            the Appeal would have to be allowed and the matter remitted

            back for a proper consideration.


        5. I have considered the submissions and perused the impugned

            order. I find merit in the grievance raised by the Appellant.

            The impugned order merely sets aside the judgment and

            decree of the Trial Court and remands the matter for a fresh

            hearing, without framing any points for determination,

            without recording any findings on the merits of the appeal,

            and without recording satisfaction as to the fulfilment of the

            statutory requirements for exercise of power under Order XLI

            Rule 23 or Rule 23-A of the Code of Civil Procedure.


        6. Hence, for the aforesaid reasons, the impugned judgment and

            order dated 9th August 2019 cannot be sustained and is

            accordingly set aside. The First Appellate Court is directed to

            reconsider Civil Appeal No. 92 of 2013 afresh and to decide
2 [Bombay High Court] Order dt. 13th April 2018 in Appeal from Order No. 318 of 2011

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   the same on merits by framing appropriate points for

   determination and by recording substantive reasons in

   accordance with law.


7. The Appeal from Order is disposed of in the aforesaid terms.




                                    (ARIF S. DOCTOR, J.)




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