Himachal Pradesh High Court
Reserved On: 14.06.2024 vs Krishan Lal on 24 June, 2024
2024:HHC:3863 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 1127 of 2023 .
Reserved on: 14.06.2024 Date of Decision: 24.6.2024.
Kiran Thakur ...Petitioner
Versus
Krishan Lal
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the petitioner : Mr. B.L. Soni, Advocate. For the Respondent : Mr. Tara Singh Chauhan, Advocate.
Rakesh Kainthla, Judge The present petition is directed against the order dated 11.9.2023, passed by learned Judicial Magistrate First Class (JMFC), Manali, District Kullu, H.P., (learned Trial Court) vide which the application filed by the respondent (accused before the learned Trial Court) under Section 311 of Cr.P.C. was allowed.
(Parties shall hereinafter be referred to in the same manner as 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/06/2024 20:33:22 :::CIS 2they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint No. 135 of 2014 for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) against the accused. Learned JMFC, Manali dismissed the complaint on 28.11.2018 after holding that the complainant is not the legally wedded wife of the deceased Shobha Ram and she was not entitled to file the complaint for the commission of an offence punishable under Section 138 of the NI Act. The complainant filed Criminal Appeal No. 38 of 2019 before this Court. This Court allowed the appeal and set aside the judgment passed by learned JMFC, Manali. The Court passed the following order:-
"6. Since the afore document, was, not existing, on, the file of the learned Judicial Magistrate concerned, and, also when hence, he did not appraise its evidentiary worth, nor, applied thereon, the applicable thereto hence other statutory provisions, (i) whereupon it would not be befitting for this Court, to, construe that the afore germane evidence, has been misappraised, or, has remained unappreciated, nor also, it would be befitting for this Court, to suo motu, make any conclusion, vis-a- vis, the afore factum probandum, (ii) when hence, thereupon this Court would be untenably appropriating, to itself the judicial function, to be otherwise, performed ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 3 by the Judicial Magistrate concerned. Consequently after allowing Cr.M.P. No. 283 of 2019, and, also necessarily hence, after quashing the impugned order, for, enabling, .
the, hereinafter facilitation(s) vis-a-vis the remainder Court, this Court, make an order of remand to the remandee Magistrate, to, after his ensuring, the tendering, before it, of the testamentary disposition, executed by the deceased Shoba Ram, vis-a-vis, one Kiran Thakur, and, also after permitting the accused, to, adduce evidence in rebuttal thereto, to thereafter make a fresh decision, upon, the apposite complaint."
3. The accused approached the Hon'ble Supreme Court of India by filing an SLP (Crl.) No. 11018 of 2019; however, SLP was dismissed on 20.6.2022.
4. During the Trial before the learned Trial Court, the accused filed an application under Section 311 of Cr.P.C. seeking permission to bring on record the document alleged to have been executed by deceased Shobha Ram on 20.12.2023 (sic). The complainant opposed the application; however, the application was allowed by learned JMFC, Manali on 11.9.2023 and the matter was listed for leading additional evidence.
5. Being aggrieved from the order passed by the learned Trial Court, the complainant/petitioner filed the present petition asserting that the document dated 20.12.2013 is intended to be produced to prove that the entire sale ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 4 consideration was received and the security cheque was cancelled. This evidence is beyond the scope of the remand .
order. Learned Trial Court was bound by the conditions of the remand and the order passed by it is not sustainable. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
6. I have heard Mr. B.L. Soni, learned counsel for the complainant/petitioner and Mr. Tara Singh Chauhan, learned counsel for the respondent/accused.
7. Mr B.L. Soni, learned counsel for the complainant/petitioner submitted that this Court had passed a specific order of remand with a direction to receive the evidence of testamentary disposition executed by Shobha Ram, permit the accused to adduce evidence in rebuttal thereto and thereafter make a fresh decision on the complaint. The scope of the remand was confined to receiving the evidence regarding the testament executed by the deceased. Learned Magistrate was bound by such an order and could not have enlarged the scope of the order of the remand by receiving other evidence. Hence, he prayed that the present petition be allowed and the order passed ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 5 by the learned Trial Court be set aside. He relied upon the judgments of the Hon'ble Supreme Court in Shivshankar and .
another Vs. H.P. Vedavyasa Char AIR 2023 SC 1780, Chote Lal v.
Kalyan Prasad, 1986 SCC OnLine Raj 17: 1986 RLW 363: AIR 1987 Raj 75, Ramabai v. Harbilas, 1996 SCC OnLine MP 39: 1996 MP LJ 1118 : (1997) 2 AP LJ (DNC) 36: AIR 1997 MP 90 and Om Prakash Sharma Vs. Raj Rani 2005 (1) RCR (Rent) 249 in support of his submission. r
8. Mr. Tara Singh Chauhan, learned counsel for the respondent submitted that the document sought to be produced is highly relevant because it shows that total sale consideration was paid to the deceased and the cheque issued as a security was cancelled. This will have an important bearing on the question whether the cheque was issued in discharge of the legal liability or not. Hence, the learned Magistrate had rightly allowed the application. He relied upon the judgment of the Hon'ble Supreme Court in UT of Dadra and Nagar Haveli Vs. Fateh Singh Mohan Singh Chauhan 2006 (7) SCC 529 and this Court in Sant Ram Vs. Tula Ram, Cr.MMO No. 1075 of 2023, decided on 26.2.2024 in support of his submission.
::: Downloaded on - 24/06/2024 20:33:22 :::CIS 69. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
.
10. It is apparent from the order passed by this Court that this Court had directed the learned Magistrate to receive the evidence of testamentary disposition executed by Shobha Ram vis-à-vis Kiran Thakur, permit the accused to adduce evidence in rebuttal thereto and thereafter make a fresh decision on the complaint. Thus, the learned Magistrate was only required to take evidence regarding the testamentary disposition from the complainant and any rebuttal evidence from the accused.
11. It was submitted that since this Court had also directed the making of the fresh decision, therefore, it was not a case of a limited remand but a case of open remand. This is not acceptable. Since the earlier order holding the complainant not to be the legally wedded wife was set aside and she was permitted to lead evidence regarding the testamentary disposition in her favour, it was necessary to order that a fresh decision be taken. The earlier order would cease to have any effect after the evidence of testamentary disposition was led by ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 7 the present complainant. Hence, not much can be read from the use of the term "make a fresh decision" used by the court.
.
12. It was laid down by the Rajasthan High Court in Chote Lal (supra) that where the Court had ordered that the sale deed would be taken in evidence and parties would be permitted to lead evidence in support and rebuttal thereof, it was not a case of open remand but a limited remand. It is not permissible for the learned Trial Court to allow the parties to reopen other matters and accept another document. It was observed:-
13. The main question which can be said to arise in the present petition is whether the remand order passed by the first appellate court was an open remand or it limited the jurisdiction of the trial court to certain specific proceedings only. If the order in the present case can be said to be an open remand then the lower court can try the suit as if it were trying it for the first time and all the powers which a court has in the disposal of a suit can be exercised by it. However, if the order of the first appellate court is such which can be said to have placed limitations on the powers of the trial court then the trial court cannot go beyond the directions given by the appellate court.
14. In the present case, the order of remand may again be referred to in order to judge as to what is nature of it. In appeal before the District Judge, an application under Order 41 Rule 27 C.P.C. was accepted and a particular document which is a sale deed of the year 1926 (or 1920) was ordered to be taken in evidence and the parties were allowed to lead evidence in proof of this document as well as in rebuttal to this evidence. After doing so, the trial court was to give a fresh decision. The order of the remand ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 8 makes it very clear that the trial court has to proceed in a specified manner which is to admit a particular document in evidence and allow the parties to lead evidence to prove or .
disprove the same. Such a direction cannot be said to be an open remand so as to allow the parties to re-open other matters and permit the court to accept other documents which have not been admitted in evidence according to the directions of the first appellate court. The jurisdiction of the trial court is limited to the directions issued by the appellate court and it cannot go beyond this jurisdiction and admit documents which were not already on record. The learned Civil Judge, Bharatpur has exercised its jurisdiction with material irregularity and illegality and as such this revision is accepted and the order passed by the Civil Judge, Bharatpur on 21st Jan. 1985 is set aside. (Emphasis supplied)
13. The scope of the remand orders was discussed as under:-
"5. In Scientific Instruments Co. Ltd. v. Collector of Customs (Valuation Section) AIR 1976 Cal 38 the Appellate Collector under the Customs Act remanded the matter with the direction that Section 14(1)(b) of the Customs Act should be applied but the Assistant Collector passed an order holding that the determination should be on the basis of Section 14(1)(a) of the Act. It was held that on remand the jurisdiction of the Assistant Collector was limited by the order of the appellate authority and determination should be on the basis of Section 14(1)(a) of the Act. It was held that on remand the Assistant Collector acted in excess of his jurisdiction which was limited by the order of the appellate authority and it was his duty to comply with it. As the order was contrary to the direction of the appellate authority, it was held to be illegal and unjustified and without jurisdiction.
6. In Charles N. Ambrose v. Meeakashi Ammal Ramal Ammal AIR 1953 Trav Co. 109 it was held that when the ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 9 order of remand determines the jurisdiction then the trial court is not empowered to give a decision on a matter which has not been remanded for enquiry.
.
7. In Roop Kishore v. Guj Ram ILR (1953) Raj 988 the Appellate Court while remanding a case issued directions to allow the amendment of the plaint within one month from the date of remand when the plaintiff filed the amended plaint one month after such date it was held that the trial court could not accept the amended plaint and could not extend the time fixed by the trial Court. The order of the trial court extending time was set aside.
8. In Budhilal Deviprasad v. Jagannathdas Gajrangdas AIR 1963 Madh Pra 344 it has been held that the power and jurisdiction of the lower court to deal with the suit, after remand, depends on the specifications of the remand order. Where the order of remand lays down any limits for the enquiry to be made by the lower courts, that court has no jurisdiction to enter into any question which falls outside those limits.
9. In Balaswaraswami Varu v. Mallidi Dorayya AIR 1972 Andh Pra 250 it was similarly held that the lower court has to act within the limits of the remand order when the appellate court directs to make an enquiry on a particular point. It is not open to the lower court to re-open the finding of the appellate court.
10. In Chandan Mal v. Rawat Mal 1979 WLN 530: AIR 1980 Raj 139 the High Court remanded the suit back to the District Judge with the direction that he should allow the plaintiff an opportunity to examine one witness and then dispose of the appeal according to law. It was further directed that no evidence of any other nature would be recorded by way of rebuttal. After remand the first appellate court examined expert witnesses on behalf of both the parties with the consent of the parties. This procedure adopted by the District Judge was held to be illegal as it was in conflict with the direction given by the ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 10 High Court and such a procedure cannot be adopted even with the consent of the parties."
14. A similar view was taken by the Madhya Pradesh .
High Court in Ramabai (supra), wherein it was held that the learned Trial Court had limited jurisdiction in terms of the remand order. It can decide the matter only as per the directions issued by the Appellate Court. It was observed:-
"8. The basic question, therefore, which is the substantial question of law involved in this appeal is whether it was open or was permissible to the trial Court to by-pass the directions under the order of remand and the reason for which its earlier judgment and decree of dismissal of suit was set aside and then further to decree the suit on the same evidence. It would amount to allowing the premium to the plaintiff for his abusing the process of law. The plaintiff sought the setting aside of the judgment from the appellate Court by praying the amendment of the plaint but he later on reamended the plaint by side-
tracking the order of remand. The trial Court ignoring the order of remand, without there being any further change in the evidence or circumstances, decreed the suit. The trial Court in this manner fell prey to the unwholly design of the plaintiff-respondent and the appellate Court also failed to consider this glaring illegality committed by the trial Court.
9. Under the order of remand passed by the appellate Court, the learned trial Court had limited jurisdiction depending upon the terms of the remand order. It could decide the suit only in view of the directions issued by the appellate Court.
10. The suit in its original position was dismissed by the trial Court. By the amendment, under the remand order, the position was changed, but by later amendment, the earlier amendment was withdrawn and the suit was again ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 11 brought back to its original position in which it was earlier dismissed. But this time the judgment decreeing the suit was passed by the learned trial Court. Such a .
course was not open to the trial Court. In doing so, it had proceeded against the direction of the Superior Court issued under the order of remand. It is well settled that the Court to which the case is remanded has to comply with the order of remand. Acting contrary to the order of remand is contrary to law. In an almost similar circumstance, it was held by this Court in Rukhmanand v. Deenbandh, 1971 JLJ SN 159 that:
"It is settled law that when a suit is remanded for a decision afresh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order or enter into questions falling outside its limit. There was, therefore, no jurisdiction in the learned trial Judge to allow an amendment of the pleadings which was outside the scope of the remand order."
The order of remand had to be followed in its true spirit. The plaintiff by playing hide and seek had succeeded in getting his suit decreed whereas the suit was dismissed under the original judgment passed by the trial Court, which was set aside by the appellate Court, while remanding the case. After the last amendment, since the suit had reverted to the same position, could it be decreed by the trial Court later by violating the remand order? The lower appellate Court also committed an apparent error of law in confirming the later judgment and decree of the trial Court." (Emphasis supplied)
15. A similar view was taken in Bidya Devi v. Commissioner of Income-tax, Allahabad, 2003 SCC OnLine Cal 215: AIR 2004 Cal 63 wherein it was observed:
::: Downloaded on - 24/06/2024 20:33:22 :::CIS 12"5. In our view, it was so held rightly. Inasmuch as the Assessing Officer was bound by the said order of remand. The order of remand is confined only to the extent it was .
remanded. The Assessing Officer could not sit on appeal over the decision by the order of remand. The matters finally disposed of by the order of remand cannot be reopened when the matter comes back after the final order upon remand on appeal or otherwise to the Court remanding the matter. If no appeal is preferred against the order of remand, the matters finally decided in the order of remand can neither be subsequently re-agitated before the Court to which remanded nor before the Court where the order passed upon remand is challenged in appeal or otherwise from such order. The Court, to which the matter is remanded, has to act within the order of remand. It is not open to such Court or authority to do anything but to carry out the terms of the remand even if it considers it to be not in accordance with law. Once a finality is reached, it cannot be reopened. Even if the Supreme Court holds otherwise even then the Court cannot go back on its earlier order of remand. It can only be done through a review of the order of remand. It cannot be achieved in the appeal against the order passed upon remand."
(Emphasis supplied)
16. The Delhi High Court also took a similar view in Om Prakash Sharma (supra) and held that the scope of limited remand cannot be enlarged by the Court. It was observed:-
"6. The ambit and scope of the enquiry by the Controller was therefore limited to the alternative accommodation. It is the admitted case of the parties before me that on the date of filing the eviction petition, the case of the landlord stood proved. In other words, the relationship of landlord and tenant was admitted, premises let out for residential purposes was admitted, premises required bonafide for the residence of the landlord and his son dependent on ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 13 him was admitted and it was also admitted that on that day there was no alternative accommodation available with the son of the landlord which could be taken into .
consideration as being the suitable alternative accommodation for the purposes of the Delhi Rent Control Act. However, counsel for the respondent vehemently argues that the Controller could have extended his enquiry into re-appreciating the material on record to go into the previous conduct of the landlord to reopen the question of bonafide requirement. This with great respect to counsel cannot be done. The scope and ambit of the trial court on a remand if restricted cannot be enlarged. Reference may be had to Konappa Mudaliar v. Kusalaru alias Munuswami Pillai AIR 1970 Madras 328], Balaswaraswami Varu v. Mallidi Dorayya [AIR 1972 Andhra Pradesh 250], Smt. Ramabai v. Harbilas [AIR 1997 Madhya Pradesh 90], Mohan Lal v. Anandibai [AIR 1971 SC 2177] and K. Veerabasappa v. The Court of Dist. Judge at Chitradurga [AIR 1979 Karnataka 40].
7. From a perusal of the above judgments, it is clear that the law stands settled that the trial court must strictly adhere to the remand order. Any enlargement of scope would not be permissible and beyond jurisdiction. I need hardly dwell on the matter any further since it is evident from the judgment under challenge that the trial court has far exceeded its mandate which required the Controller to adjudicate upon the alternative accommodation. The Controller while exceeding his authority went on to hold that the previous conduct of the landlord disentitles him from an order of eviction under Section 14(i)(e), even though the previous order took into consideration the requirements of the landlord at the time when the petition was filed and held that the bona fide requirement did exist and stood proved. The crucial date for deciding the bona fides of the landlord is the date on which his application for eviction has been filed. Reference may be had to Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604], G.C. Kapoor v. Nand Kumar Bhasin [2002 (1) RCJ 53 ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 14 SC], Kamleshwar Prasad v. Pradumanju Agarwal [(1997) 4 SCC 413] and N.R. Narayan Swamy v. B. Francis Jagan [(2001) 6 SCC 473]. In a result, admittedly there is .
no suitable alternative accommodation available to the landlord and members of his family dependent on him. The judgment under challenge is set aside and the petition under Section 14(i)(e) of the Delhi Rent Control Act read with Section 25(B) of the Delhi Rent Control Act is allowed. RC.REV 37/2004 is accordingly allowed and disposed of. A decree of eviction from the premises in question is passed. Six months is granted to the tenant to vacate the premises in question." (Emphasis supplied)
17. The Hon'ble Supreme Court also held in Shiv Shankar (supra) that the Court to which the case is remanded has to comply with the order of remand and it cannot act contrary to the same. It was observed:-
"7. Before proceeding with the matter further, we think it appropriate to consider the impact of such an order of remand as it would certainly deconvolute consideration of this appeal. There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit. True that in this case the High Court, originally, as per judgment dated 29.10.2007 remanded the matter to the trial Court for fresh disposal and while doing so, it also directed the trial Court to afford opportunity to the defendants to lead evidence. But then, the same was modified by this Court and as per the judgment in C.A. No. 5201 of 2009 the matter was remanded to the High Court for fresh disposal of RFA No. 1996 of 2007 and the further direction to the trial Court was only to record the evidence as directed by the High Court and to forward it along with report to enable the High Court to dispose of the appeal taking into ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 15 account the additionally recorded evidence of the defendants as well. Thus, it is evident that the direction to the trial Court for recording the evidence and submitting .
it along with the report will not affect the evidence already on record or will not be having the effect of setting aside the judgment and decree passed by the trial Court and indisputably, its purpose was only to enable the High Court to consider RFA No. 1996 of 2007 carrying challenge against the judgment and decree of the trial Court in O.S. No. 6456 of 1993, not only based on the evidence already considered by the trial Court but also based on the additionally recorded evidence of the defendants based on its judgment dated 29.10.2007."
(Emphasis supplied)
18. Thus, the jurisdiction of the Trial Court in case of remand depends upon the order of the remand. The Trial Court cannot enlarge its jurisdiction by allowing the parties to reopen the matters which are not remanded to it. In the present case, the question whether the cheque was issued in discharge of the legal liability or not was never remanded to the learned Trial Court and no evidence could have been admitted on this aspect.
19. The reliance placed upon the judgments discussing the scope of Section 311 of Cr.P.C. is misplaced because the Court is not concerned with the scope of Section 311 Cr.P.C. but the jurisdiction of the Trial Court after the order of the remand. Once the jurisdiction was restricted by the remand order it could not have been enlarged by referring to the provisions of Section 311 ::: Downloaded on - 24/06/2024 20:33:22 :::CIS 16 of Cr.P.C. Thus, no advantage can be derived from the cited judgments.
.
20. Thus, the learned Trial Court exercised the jurisdiction not vested in it under the law by going beyond the scope of the remand order. Hence, the present petition is allowed and the order dated 11.9.2023, passed by learned Judicial Magistrate First Class (JMFC), Manali, District Kullu, H.P., is set aside. The application filed under Section 311 of Cr.P.C. shall stand dismissed.
21. The observation made here-in-above shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
22. The parties through their respective counsel are directed to appear before the learned Trial Court on 10.7.2024.
(Rakesh Kainthla) Judge 24th June, 2024 (Chander) ::: Downloaded on - 24/06/2024 20:33:22 :::CIS