Patna High Court
Pragash Singh And Ors. vs Madan Mohan Prasad Singh And Ors. on 29 July, 1959
Equivalent citations: AIR1960PAT47, AIR 1960 PATNA 47
JUDGMENT R.K. Choudhary, J.
1. This is an appeal by the defendants. The short facts are these :
The plaintiffs respondents instituted a suit against the appellants for recovery of a sum of Rs. 2795/-, besides interest, on the basis of two handnotes alleged to have been executed by defendant No. 1 as the karta of the family for legal necessity and family benefit. The suit was contested by the appellants on the ground that they never took any loan from the plaintiffs nor did defendant No. 1 execute the handnotes in question. It was pleaded that the handnotes were forged. The trial Court accepted the defence version of the case, and dismissed the suit. On appeal bv the plaintiffs, the lower appellate court remanded the case to the trial Court for getting the signatures of defendant No. 1 on the handnotes examined by a handwriting expert and for the evidence of that handwriting expert. After remand, file signatures were com-pared by a handwriting expert, who was also examined on behalf of the plaintiffs and ultimately the trial court decreed the suit. The appellants came up in appeal before the lower appellate Court, but that appeal was dismissed. They have therefore, presented this appeal in this Court.
2. The only point taken by Mr. P. R. Das, appearing on behalf of the appellants, in support of the appeal is that the order of remand passed by the lower appellate Court was without jurisdic-tion, and, therefore, the decree passed in favour of the plaintiffs after remand is a nullity. The contention appears to be sound, and, in my opinion, must prevail.
3. In support of the above contention, an argument has been pressed "that the order of remand was not in accordance with the provisions of [the Code of Civil Procedure and was, therefore, without jurisdiction. Before dealing with that question, it may however, be necessary to notice the order of remand itself. The learned subordinate Judge, who heard the appeal and made the order of remand, stated in his judgment as follows :
"The handwritings in the execution portions of the two handnotes which are said to be of defendant No. 1 were not compared by any. expert, and on account of this the appellants have prayed that as this constitutes a gap in the evidence in the interest of justice the handwritings on the execution portions of the handnotes be also compared by an expert. The appellants pray that either this be done in this court or the suit be remanded back to the trial court for the purpose.
The amount involved in the suit is considerable, and in the interest of justice I consider it proper to allow the appellants' prayer for comparison of the handwritings in question by a reliable Handwriting Expert but this should be done not in this court but in the trial court where the suit must go back on remand."
The ultimate order passed runs as follows :
"The appeal is allowed and the decision of the court below is set aside and the suit is remanded for a fresh decision according to law after getting the opinion of a reliable Handwriting Expert regarding the handwritings in the execution portions of the two handnotes in suif which are said to have been written by defendant No. 1. ....."
4. The above order of remand obviously does not come either under Rule 23 or Rule 25 of Order XLI of the Code of Civil Procedure which empowers the appellate Court to remand a case. Rule 23 comes into play only where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed in appeal by the appellate Court. This rule does not apply to the present case because the suit in this case had not been disposed of upon any preliminary point. Rule 25 also has no application because that rule empowers an appellate Court to make an order of remand only where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits. There is no other specific provision under which the order of remand in question could be made.
It is, however, well established by now that a Court has got inherent power under Section 151 of the Code of Civil Procedure to make an order of remand in appropriate cases where they do not fall within the specific provisions made for that purpose in Order XLI of the Code of Civil Procedure, It, therefore, cannot be said that the order of remand is without jurisdiction because it does not come under any or the provisions of Order XLI of the Code of Civil Procedure.
5. It has, however, been argued on behalf of the appellants that in this ca.se the order of remand has been made to enable the plaintiffs to adduce further evidence in the trial court against the provisions of Order XLI, Rule 27, of the Code of Civil Procedure, and, therefore, it is without jurisdiction. Rule 27(1) of that Order, so far as it has been amended by the Patna High Court, runs as follows :
"Rule 27(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the party "seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or
(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined ."
Admittedly, the present case does not come under Clauses (a) and (b). There is no question in the present case of any evidence having been refused to be admitted by the trial Court, nor is there any case of the same not being within the knowledge of the plaintiffs. The plaintiffs in this case very well knew that the signatures on the handnotes had been denied to have been made by defendant No. 1, and they also knew that they had to prove the signatures by satisfactory evidence. They could and should have, therefore, got the signatures compared by an expert and brought his evidence on record at the trial. It is well established that parties cannot be permitted to patch up the gaps and laches by way of adducing additional evidence in the appellate Court.
Under Clause (c). however, the appellate Court could take additional evidence if it required that evidence to be taken to enable it to pronounce judgment or for any other substantial cause. In this case, the appellate Court, before remand, did not say that it required the evidence of a handwriting expert in order to enable it to pronounce judgment or for any other substantial cause, rather the order clearly indicates that the appellate court accepted the prayer of the plaintiffs to permit them to fill up the gaps and laches by remanding the case for taking additional evidence of the handwriting expert. This the Court could not do under the above Clause (c). It is, therefore, manifest that the remand order was without jurisdiction,
6. It has been held by the Privy Council in Parsotam Trakur v. Lal Mohar Tliakur, AIR 1931 PC 143 that the above rule entitles the appellate Court to receive additional evidence only if it requires, that is to say, finds it needful, that additional evidence be taken. It has been ruled in that case that the provisions of this rule are clearly not intended to allow a litigant who had been unsuccessful in the lower Court to patch up the weak parts of his case and fill up the omission in the Court of appeal. It has further been pointed out there that the Court may require additional evidence to enable it to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it upon its appreciation of the evidence as it stands. In Kessowji Issur v. G.I.P. Rly. Co., 34 Ind App 115. it has been ruled that in may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands, The Supreme Court in Arjan Singh v. Kartar Singh AIR 1951 SC 193 has taken the same view.
7. Applying the principles discussed above to the facts of the present case, it is apparent that the order of remand passed by the lower appellate Court did not come within the purview of any of the clauses of Rule 27(1) of Order 41 of the Code of Civil Procedure and was without jurisdiction. In Bibi Wajifan v. Sital Prasad, 1957 BLJR 740 it has been held that where the appellate Court remandg the case to give opportunity to the party to adduce additional evidence which is not permissible under the provisions of Order XLI, Rule 27, of the Code of Civil Procedure, the order of remand is bad in law and without jurisdiction.
8. Mr. Lalnarayan Sinha, appearing for the plaintiffs respondents, has, however, contended that the lower appellate Court was within its rights to make the above order of remand, but he has not been able fa cite any authority in support of his contention. Reading Order XLI, Rule 27, as it stands, and the authorities discussed above I have no reason to doubt that the order of remand passed by the lower appellate Court was without jurisdiction and the evidence taken and the decisions given in the case after remand are all. therefore, null and void.
9. Mr. Lalnarayan Sinha, however, has taken up a point that the appellants did not move this Court in revision against the order of remand passed by the lower appellate Court and took part in the proceedings relating to the evidence of the Handwriting expert. He, has, therefore, contend-ed that the appellants are not entitled to raise this point in second appeal against the decree passed after remand. In support of this contention, reliance has been placed on an observation made in a special Bench decision of this Court in Baijnath Prasad Singh v. Umeshwar Singh. AIR 1937 Pat 550 (SB). That was a case where the trial Court gave several adjournments to the plaintiff for paying the deficit court-fee. In appeal against the decree passed in the suit by the trial Court the validity of the adjournments given for payment of the deti-cit court-fee was challenged. It was held by the full Bench that under Section 149 of the Code of Civil Procedure the Court had discretion to give time for payment of the deficit court-fee, though in that case that discretion was exercised in an outrageous fashion. In that view of the matter, it was observed that the validity of the time given for payment of the deficit court-fee could not be challenged in an appeal against the decree passed in the suit. In support of the above decision, Courtney Terrell, C. J., in course of the judgment, gave an illustration of a case where the appellate Court, in exer-cising the discretion to take additional evidence, exercised it wrongfully and admitted further evidence which was relevant to the issue in dispute, and, in support of this illustration, placed reliance on the case of Durga Tewari v. Ramrati Kuer, ILR 16 Pat 371 : (AIR 1937 Pat 584). The above observation, in my opinion, was merely an obiter, and the decision of that case can have no application to the facts of the present case because in that case the Court had the discretion to give time to the plaintiff for payment of the deficit court-fee and there could be no interference with the exercise of that discretion,
10. So far as the case of ILR 16 Pat 371 : [AIR 1937 Pat 584) is concerned, I do not think it is of any assistance to the plaintiffs respondents in the present case. In that case one of the important issues was as to when one Kalika died. On the evidence adduced before it, the trial Court held that she died in the year 1928, as alleged by the defendant. On appeal by the plaintiff, a document was produced on her behalf in the appellate Court for being taken as additional evidence which could establish beyond doubt that Kalika died sometime in May, 1929. It was alleged by the plaintiff in that case that, in spite of exercise of due diligence, she did not have any knowledge of that document, and, therefore, she could not produce the same in the trial court. Its acceptance in evidence by the appellate court was held by this Court to be valid. It was observed that she could have made an application for review under Order XLVII, Rule 1, of the Code of Civil Procedure for review of the judgment of the ground of discovery of new evidence, and, therefore, the appellate Court was perfectly justified under Rule 27 of Order XLI to take that document as additional evidence. The ground taken in that case for admitting the document as additional evidence is covered by Clause (b) of Order XLI, Rule 27, of the Code of Civil Procedure, as amended by the Patna High Court as well as various other High Courts. This case has. therefore, no application to the facts of the present case where the taking of additional evidence has not been directed under that clause.
11. Reliance has also been placed by counsel for the respondents on a Bench decision of this Court in Manik Mandal v. Bharosi Singh, AIR 1959 Pat 225. In that case, the suit of the plaintiffs was dismissed for default, but, on an immediate application being made by them, the order of dismissal was set aside without giving any notice to the defendant, and the -suit was decreed by the trial Court. The defendant preferred an appeal in the lower appellate Court, and it was contended there that the order recalling the order nf dismissal without giving notice to the defendant was without jurisdiction, and that, therefore, the decree passed in the suit was vitiated in law. The lower appellate Court accepted this contention and held the trial, after setting aside of the order of dismissal, to be without jurisdiction. On revision by the plaintiffs, this Court held that the validity of the order setting aside the order of dismissal could not be challenged in appeal from the decree passed in the suit after the order of dismissal was set aside. On the basis of this decision, it has, therefore, been contended that the order of remand passed by the lower appellate Court in this case could not be challenged in appeal against the decision made after the order of remand. In the case just cited it was held by this Court that the setting aside of the order of dismissal without giving notice to the defendant was an error of law which could be corrected by higher authorities in. an appropriate proceeding taken against that order, but by no stretch of imagination could it be treated as a nullity as being without jurisdiction and that it did not affect the decision of the case on the merits. That case, therefore, has no application to the facts of the present case where, as already held, the order of remand was absolutely without jurisdiction.
12. Sub-section (1) of Section 105 of the Code of Civil Procedure states that save as authorities expressly provided, no appeal lies from anv order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memo-randum of appeal. In the present case, the order of remand passed by the lower appellate Court, not being under Order XLI, Rule 23, of the Code of Civil Procedure was not appealable, but it cer-tainly affected the merits of the case. Therefore, under the provisions of the above section, the illegality of that remand order could be taken as a ground of objection in the appeal against the decree passed after remand.
13. The above view gains ample support from the decision of the Privy Council in Har Narain Singh v. Bhagwant Kuer, 18 Ind App 55. In that case a reference was made by Court to an arbitrator in a pending suit but the award was given after the expiry of the time granted by the Court to the arbitrator to submit the award. After the submission of the award, however, the Court extended the time up to the date when the award was actually submitted, and passed a decree in terms of the award. That decree was confirmed by the High Court and no objection was taken to the decree on the award on the ground that award was submitted after the expiry of the time allowed by the Court. Under the law no award could be valid unless made within the period allowed by the Court. This point was taken before the Privy Council and was given effect to by their Lordships who declared the award to be invalid and gave direction for proceeding with the suit.
14. In Sugha Sastri v. Balficbandrn Sastri, ILR 18 Mad 421, the appellate Court found that the trial Court had based its judgment upon evidence improperly taken, and it therefore, remanded the case to be retried. After remand, the suit was dismissed, and the decision of the trial Court was confirmed by the lower appellate Court. In second appeal preferred in the High Court, a point was taken that the order of remand was illegal. The High Court gave effect to that objection, held the remand order to be illegal and treated the subsequent proceedings as non-existent, and remanded the appeal to the lower appellate Court for disposal in accordant with law. The same view was taken in Malliknrjuna v. Fatnaneni, ILR 19 Mad 479, In Palani Chetty v. Rangiadoss Naidu, ILR 32 Mad 83, the Court of first instance passed a decree in favour of the plaintiff on the strength of a plan which was not disputed by the defendant. On appeal the appellate Court held that the plan was unsatisfactory and that a proper plan was necessary for a right decision of the suit and remanded the suit for re-trial under Section 562 of the Code of Civil Procedure of 1882. No appeal was preferred by the plaintiff under Section 588 of that Code against the order of remand and the lower Court again passed a decree in favour of the plaintiff which was reversed on appeal.
The plaintiff preferred a second appeal to the High Court, and it was held that the original order of remand was contrary to the provisions of Section 562 of the Code and that such an order was not merely irregular but illegal and could not be validated by Section 578. It was contended there, as has also been contended before me by Counsel for the respondents, that against the order of remand the aggrieved party did not go up in appeal in that case, and in revision in the present case, and acquiesc-ed in the trial on remand, and, therefore, the ille-gality of the remand order was waived. It was held in that case that, even if such an illegal order might be validated by consent or waiver, neither the omission of the plaintiff to appeal unden Section 588 nor his acquiescing in the trial on remand amounted to such consent or waiver. I perfectly agree with the view taken in that case, and hold that the appellants are not in any way estopped from challenging the validity of the remand order in the present appeal.
15. For the reasons given above, it is manifest that the order of remand passed by the lower appellate Court on the first occasion of appeal in the lower appellate Court was without jurisdiction and the decrees of the trial court as well as that of the lower appellate Court after remand order were null and void.
16. The result, therefore, is that this appeal is allowed, the decrees of the lower appellate Court and of the trial Court after remand are set aside, and the remand order passed by the lower appellate Court on appeal against the original decree of the trial Court is also set aside. The case will now go back to the lower appellate Court for a fresh decision in accordance with law as an appeal against the original decree of the trial Court ignoring the evidence adduced & decisions given in the suit after that order of remand. The costs of this appeal will abide the result.