Heard learned counsel for the parties.
This F.A.F.O. is directed against order of remand dated 15.12.2006 passed by A.D.J. Court no.5 Bijnor in Civil Appeal no.144 of 2001. The appeal had been filed by the plaintiffs of O.S. no.193 of 1994 who are respondents in this F.A.F.O. The allegation of the plaintiffs in the plaint was that present appellant Liyakat Ali executed an agreement for sale of his immovable property in favour of Shabbir Ahmad father and husband of plaintiffs on 8.7.1988 and after receiving Rs.80,000/- as earnest money (against total agreed sale consideration of Rs.90000/-) and after signing the agreement but just before the parties were to proceed to the office of sub Registrar for registration of the agreement, defendant under some false pretext slipped from the compound of the registration office and thereafter refused to get the agreement registered. Objection and appeal under Registration Act were also earlier filed, thereafter, the suit was filed.
Defendant present appellant denied execution of any agreement for sale.
Trial court held that plaintiffs completely failed to prove that defendant had executed any agreement for sale on 8.7.1988 in favour of their father/husband. The suit was, therefore, dismissed on 26.5.2001 by Additional Civil Judge (S.D.) Court no.1 Bijnor. Against the said judgment and decree plaintiffs present respondents filed Civil Appeal no. 144 of 2001, A.D.J. Court no.5 Bijnor set aside the judgment and decree passed by the trial court and remanded the matter to the trial court to provide one more opportunity to the plaintiffs to get the disputed signatures of the defendant on the alleged agreement for sale dated 8.7.1988 examined by some expert. The trial court in its judgment held that even after 27 opportunities to get the disputed signatures of the defendant on the alleged agreement for sale examined by expert plaintiffs did not adduce expert, evidence. Lower Appellate court also noticed this fact on page 11 of the certified copy of its judgment under issue no.1.
Lower appellate court held that plaintiffs were entitled to get the disputed signatures of the defendant examined through expert. Merely because a party to a case is entitled to get a thing done does not mean that the court and the other party is required to wait indefinitely for that auspicious date and time when the party concerned chooses to do the thing for which it is entitled. Even after specifically noticing that in spite of 27 opportunities plaintiffs had not got the disputed signatures of the defendant on the alleged agreement for sale examined by expert the lower appellate court remanded the matter for providing more opportunity (opportunities) to the plaintiffs.
Accordingly, in my opinion the order of remand granting 28th opportunity to the plaintiffs to get the disputed signatures examined by expert is utterly illegal. Accordingly, F.A.F.O. is allowed. Judgement and order passed by the lower appellate court is set aside and appeal is remanded to the lower appellate court to decide the same after hearing both the parties finally without remanding the same on any point.
Both the parties are directed to appear before the lower appellate court on 22.8.2012.
Order Date :- 5.7.2012 vkg