Gujarat High Court
Gamanbhai Purshottambhai Patel And ... vs Jivanbhai Purshottambhai Patel on 17 January, 1996
Equivalent citations: (1996)1GLR771
JUDGMENT S.D. Shah, J.
1. Admit. Mr. R.N. Shah appears for opponents and waives service of admission. Printing is dispensed with. With the consent of learned Advocates appearing for the parties matter is finally heard and disposed of by this judgment.
2. This Second Appeal is preferred by original defendants being aggrieved by the judgment and decree passed by the Asst. Judge, Navsari, dated 30-9-1995 in Reg. Civil Appeal No. 140 of 1986 whereby he allowed the appeal of the appellant-defendants and quashed and set aside the judgment and decree passed by the trial Court in favour of respondent-plaintiffs and remanded the matter to the trial Court with direction to raise proper and legal issues after considering the pleadings and submissions of the rival parties. The learned Asst. Judge also directed the trial Court Judge to afford sufficient opportunity to lead oral as well as documentary evidence to the parties of the suit in support of their allegations and also directed that the parties were at liberty to lead fresh evidence on the issues. He also directed that the learned trial Judge shall decide the suit on merits after affording sufficient opportunity to the parties at the earliest.
3. Surprisingly, the successful parties, i.e., appellant-defendants have approached this Court despite their success in appeal as consecutively in this third matter decided by the very Asst. Judge, namely, Viral Y. Desai at Navsari. It is pointed out to this Court that he has found a novel way of disposing of the regular civil appeal by making absolutely sweeping and nebulous statements in his judgment as regards framing of issues, and as regards certain issues which in his opinion ought to have been framed and were not framed and ultimately by quashing and setting aside the entire judgment of the trial Court he is in the habit of remanding the suit to the trial Court for its retrial afresh after framing issues afresh, after recording oral as well as documentary evidence afresh and to decide the suit after providing sufficient opportunity to the parties.
4. In the earlier two Second Appeals being Second Appeal Nos. 171 and 172 of 1995 the very device was adopted by the very Judge and successful as well as unsuccessful party has to approach this very Court despite order of remand passed by the learned Asst. Judge. While deciding the said two appeals on 2-12-1995 this Court has deprecated and condemned the novel method found out by the learned Asst. Judge of disposing of regular civil appeals which were arising from the suits instituted as back as 10/12 years. While deciding such regular civil appeals he adopted the aforesaid device or modus operandi which would give him disposal of regular civil appeals and would render the litigating parties to fresh round of litigation starting from framing of fresh issues, thereby forgetting that he was adding to and prolonging the miseries of litigants by further procrastinating the litigation for no legal, just and proper reasons in his uncalled for and unwarranted zeal to dispose of appeals without doing justice to the parties and in so doing he forgot that he was not dispensing justice but he was dispensing with justice. This Court is very much grieved, moved and touched by the unfortunate approach adopted by the learned Asst. Judge that it cannot help observing that the learned Asst. Judge has rendered the right of Regular First Appeal under Section 96 of C.P. Code to a mere mockery of justice and/or confirmed the growing impression in the litigating public that real justice is merely a mirage, teasing illusion or promise of unreality in a country which proclaims to be the largest democracy and the one that wishes to ensure securing justice should not be denied to any citizen.
5. The Learned Counsel appearing for the parties having taken the Court through the judgment and decree of the learned Asst. Judge, submitted that it is not necessary to refer to, in detail, to the factual controversy in this appeal as substantial question of law involved in this appeal can be decided without elaborate reference to facts. The substantial question of law which is involved and which is required to be formulated for the decision of this Court is as under:
Whether on the facts and circumstances of the case, in suit instituted by respondent-plaintiff for permanent injunction based on the share allegedly received by the plaintiff in partition of ancestral properties when the trial Court has after framing issues based on the pleadings of the parties at Exh. 54 and after recording oral as well as documentary evidence of both parties decreed the suit of the plaintiff by granting permanent injunction to the defendants, thereby also not affecting the right of the defendant Nos. 1 and 2 to get their land irrigated, was it open to the first appellate Court exercising powers under Section 96 C.P. Code to reverse the judgment and decree of the trial Court on very ambiguous, flimsy, sweeping, nebulous statements to the effect that certain issues which ought to have been framed were not framed by the trial Court and certain issues which were raised and answered were not necessary to be raised and that attention was not focused by the trial Court on the relevant issues, and whether such exercise of power to quash and set aside such otherwise legal and proper decree passed by the trial Court and to remand the entire matter to the trial Court in view of provisions of Section 99 of the C.P. Code read with Order 41, Rules 23, 23A and 24 of the C.P. Code is permissible?
6. In this appeal, the appellants are the original defendants and the respondent is original plaintiff. He instituted Reg. Civil Suit No. 53 of 1984 in the Court of Civil Judge (JD), Chikhli for permanent injunction against appellants inter alia alleging that the parcels of land bearing Block Nos. 1234 and 2263 situated at village Vanzana had fallen to his share by virtue of partition in between the brothers and that he has become the full owner thereof and was in possession of the said lands. It was his case that he thereafter improved the land bearing Block No. 1234 which was zerayat land by levelling and canalling the same with the help of Chikhli Subdivision, Gandevi and Gujarat State Land Development Corporation. He further stated that he has thereafter planted some Nilgiri trees and taken Sugarcane crops for number of years. It was his case that he was thereafter grown Beedy crop and a well is also located in the said field. He has also got electric meter installed for pumping out water from the well by obtaining loan from bank and has converted the land into irrigated land and that the defendants were trying dispossess him or interfere with his possession and therefore, permanent injunction was required to be granted.
7. The defendants by filing written statement at Exh. 25 resisted the suit by inter alia contending that the suit was bad for misjoinder of parties and that the land was not of the ownership of plaintiff and they further denied all the allegations made by the plaintiff as regards his possession of the land and development of the land. It was their case that originally Block Nos. 1234 and 2263 were S. No. 853 running in the name of defendant No. 1 but the plaintiff took disadvantage of absence of defendant No. 1 from India and in collusion with the Land Consolidation Officer after getting his name entered in the revenue record, started paying revenue though he was not in possession of entire parcel of land and he was in possession of Eastern side portion of Block No. 1234 while the defendant No. 1 was in possession of Western side portion of Block No. 1234 and entire Block No. 2263. All the other allegations were denied and it was contended that in fact the defendant was the owner of the land and was in possession thereof. It was also alleged that the earlier suit being Reg. Civil Suit No. 47 of 1988 was also filed and at that time the plaintiff never claimed title over the suit land. The defendant No. 2 also appeared and resisted the suit by filing written statements at Exhs. 35 and 36 and on identical grounds denied the ownership of the plaintiff over the two parcels of land and contended that he was in possession of the lands and reference was also made as to how the land was developed by the defendants.
8. On the aforesaid pleadings the trial Court framed issues at Exh. 54 which are set out herein:
(i) Whether the plaintiff proves his exclusive use, ownership and possession of the Block Nos. 1234 and 2263 even on the day of filing of the suit?
(ii) Whether plaintiff proves that defendants threatened to commit trespass with cattle and to cut the standing crop of the suit lands with intention to damage the plaintiffs standing crops?
(iii) Whether the plaintiffs suit is bad for misjoinder of parties?
(iv) Whether the defendants prove exclusive use, ownership and possession of defendant No. 1 of the Western portion of Block No. 1234 as stated in written statement at para 7 below Exh. 25 and written statement at para 2 below Exh. 35?
(v) Whether the defendant No. 1 proves that plaintiff took disadvantage of outgoing of defendant No. 1 in foreign country and obtained Block No. 2263 which was originally Survey No. 852 owned and possessed by defendant No. 1?
(vi) Whether the defendant Nos. 1 and 2 prove their right of irrigation as stated in written statement para 10 below Exh. 25 and written statement para 4 below Exh. 35?
(vii) Whether the defendant No. 1 proves that the plaintiff filed the present suit for undue pressure as stated in written statement para 20 below Exh. 25?
(viii) Whether the defendant No. 1 is entitled for compensation of Rs. 1,000/- or if any as stated in written statement para 23 below Exh. 25?
(ix) Whether the plaintiff is entitled for the reliefs as prayed for?
(x) What order and decree?
The trial Court recorded the following findings:
(i) Affirmative
(ii) Affirmative
(iii) Negative as not pressed for by defendants at the time of hearing
(iv) Negative
(v) Negative as not disputed by defendants at the time of hearing
(vi) Negative
(vii) Negative
(viii) Negative
(ix) Affirmative
(x) Passed as below.
9. Based on the aforesaid findings reached by the trial Court it decreed the suit of the respondent-plaintiff but observed that while granting, injunction it should not prejudice or do injustice to the defendants-appellants considering their defence of irrigation in Block Nos. 1233 and 1238 through Block No. 1234. The trial Court, therefore, passed the following decree:
Plaintiffs suit is allowed as under:
Permanent injunction is issued against the defendant Nos. 1 and 2 without prejudicing or affecting defence of irrigation, if any, and they are restrained to go to and interfere in use, possession and cultivation and to cut the standing crop, and to damage such in respect of suit lands Block Nos. 1234 and 2263 situated at village Vanzana, Tal. Chikhli personally by themselves, or by their servants, agents etc. Applications below Exhs. 48 and 158 are hereby dismissed.
Defendant Nos. 1& 2 to bear their costs of suit and to pay the costs to the plaintiff.
Decree to be drawn in terms.
10. Being aggrieved by the aforesaid judgment and decree the defendants preferred Reg. Civil Appeal No. 140 of 1986 which came to be decided by the impugned judgment and decree by the learned Asst. Judge - Mr. Viral Y. Desai whereby he quashed the judgment and decree passed by the Civil Judge (JD) at Chikhli, dated 30th July, 1986 and remanded the matter to him with directions which are set out hereinabove and which in the opinion of this Court are vague, ambiguous, sweeping, nebulous and incapable Of being followed by any Judge of reasonable understanding.
11. In para 11 of the impugned judgment, the learned Asst. Judge observed that admittedly the parties to the suit are real brothers and that they had a sister who was not impleaded as party to the suit. He further observed that the plaintiff was claiming to be the exclusive owner of the suit field on the basis of partition. He further observed that according to the plaintiff the partition took place during the consolidation proceedings in the year 1977 while according to defendants the partition took place in the year 1975 by deed of partition. The factum of partition was thus admitted by the parties and yet he proceeded to observe that it was necessary for the Court to determine as to whether the joint Hindu properties of the parties to the suit including the suit land was ever partitioned amongst the brothers and whether the alleged parition was ever acted upon. He further conjectured that if answer to said question was in negative the parties have remained to be the memebrs of joint family and have legitimate share in properties which were jointly owned including the suit properties. Having so observed, in para 12 of the judgment he made observations which prompted him to quash the judgment and decree of the trial Court and to remand the suit to the trial Court. Said observations made in para 12 are as under:
Now on persual of the issues raised by the trial Court at Exh. 34 clearly indicates that issues with respect to the aforesaid dispute has not been framed and the parties to the suit had no sufficient opportunity to substantiate their rival contentions raised in their respective pleadings in this regard. It may also be noted that issues with regard to the maintainability of the suit is also not raised. No issue with regard to the contention raised by defendant No. 2 has been raised. Though the defendants, have disputed measurements and description of the suit land, issue with regard to the description, boundaries and measurements of the suit land has not been raised. It seems that the parties to the suit had agreed to hear application Exh. 158 along with the suit, even then issues with regard to the dispute raised by the parties in said application have not been raised. Thus, it can well be said that the issues at Exh. 34 do not reflect real dispute between the parties and as such the parties have failed to adduce sufficient evidence and have failed to explain glaring circumstances which are going against them. Moreover, the impugned judgment creates an impression that the trial Judge was not certain on what issues he was deciding the suit. The final order of the impugned judgment does not reflect the final adjudication of the substantial right of the parties to the suit. The learned Judge was also not clear on the point as to whether the defendants have any right to take water from the disputed well for irrigation and whether the said irrigation facility is of the joint ownership of the parties to the suit or not.
12. His observations are still startling as appellant-defendants have never made any grievance about the operative part of the judgment which was in their favour, and neither plaintiff nor defendants have ever urged before the Court that proper issues were not framed by the trial Court based on the pleadings and that they did not understand the pleadings properly or that they could not lead evidence which they wanted to lead or that sufficient opportunity was not provided to them to lead evidence on any of the issues. Despite this the learned Asst. Judge proceeded to observe as under:
Now use of words "without prejudice" and "affecting defence of irrigation, if any" by the learned trial Judge in the final order clearly indicates that in absence of proper issues the plaintiff, defendants, the learned trial Judge were not in a position to understtand the real dispute between the parties and they failed to resolve the same on merits. It is pertinent to note that the impugned decree is not clear but ambiguous and subject to condition. The law does not permit to pass such an ambiguous decree. Moreover, the final order is inconstient with the findings given by the learned trial judge in pragraph 5 of the judgment. Thus, it can well be said that the material disputes have not been resolved on merits by the learned trial Judge. It is not proper to this Court to reappreciate this evidence and to come to a particular finding because it will adversely affect the alleged rights of the parties to the suit as well as rights of the person interested in the suit land who are not parties to the suit. It is, therefore, necessary to remand the matter for rehearing after resolving the dispute between the parties on merits after raising necessary, proper issues after affording sufficient opportunity to the parties of the suit. This would serve the purpose of the parties to the suit. It may be observed without prejudice to the rights of either party of the suit that it is not established on record that the plaintiff is exclusive owner and occupant of the suit land as alleged by him. Similarly, it seems that the contention of the defendants that the defendant No. 1 is exclusive owner and occupant of western portion of the land bearing Block No. 1234 has also not been proved because the parties and learned trial Judge could not understand what requires to be proved in the present case in view of the contentions raised by the parties in their respective pleadings. Thus, this Court has no alternative but to remand the matter for fresh trial with a view to resolve the real dispute between the parties.
13. It is the aforesaid part of the direction given by the learned Judge though partially in favour of appellant-defendants, has aggrieved the appellant-defendants and to say the least the approach of the learned Asst. Judge has even annoyed this Court also.
14. Mr. D.D. Vyas, Learned Counsel appearing for appellants-defendants in this appeal strenuously urged before this Court that the learned Asst. Judge, Mr. Viral Y. Desai at Navsari has disposed of number of regular civil appeals on such vague, ambiguous and nebulous statements and has quashed and set aside the judgments and decrees of the trial Court and has remanded the matters to the trial Court. He submitted that the facts and circumstances under which ordinarily the remand could be ordered by the lower appellate Court after quashing and setting aside the judgment and decree passed by the trial Court are exceptional and rare and that remand of the entire suit to the trial Court after quashing and setting aside the judgment and decree of the trial Court on grounds which are absolutely flimsy, non-existent, vague, ambiguous, nebulous, unjustifiable and unwarranted in every respect should not be countenanced by this Court.
15. Mr.D D Vyas, Learned Counsel appearing for appellants invited the attention of the Court firstly to Section 99 of the C.P. Code which reads as under:
99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
16. From the aforesaid provision of the C.P. Code it becomes clear that no decree passed by the trial Court shall be reversed or substantially varied nor shall any case be remaned in appeal on account of any misjoinder or non-joinder of parties or causes of action. The learned Asst. Judge appears to be totally oblivious of this statutory provision. He has not adverted to this statutory provision at all. He has in the judgment observed that issue ought to have been raised about non-joinder or misjoinder of parties. One fails to understand as to how the trial Court was in error when the defendants were not in a position to establish or to plead as to who were necessary or proper parties, who were not impleaded as party-defendants. In absence of any specific pleading, when a general avertment is made that the suit is bad for non-joinder of parties, no obligation can be cast on the trial Court to frame an issue as to whether the suit is bad for misjoinder or non-joinder of parties. The learned Asst. Judge has also not noted anywhere in the judgment as to which parties were necessary parties, who were not joined as party-defendants. This Court, therefore, fails to understand as to why and under what circumstances, the judgment and decree passed by trial Court can be faulted and can be quashed and set aside on such totally non-existent ground.
17. Section 99 of the C.P. Code further stipulates that no decree passed by the trial Court shall be reversed or substantially varied for any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case. The learned Asst. Judge has very generally and cursorily without specifying, stated that issues which ought to have been raised were not raised by the trial Court and issues which were not required to be raised were raised by the trial Court. The learned Asst. Judge has failed to specify such issues even in the operative part of the judgment and decree that he has passed. He has not clarified as to on which issue the parties have failed to focus their attention and have failed to lead evidence, which has resulted into miscarriage of justice. Perhaps, the learned Asst. Judge himself was ignorant of any such issue and that it is the reason why he could not specify any issue which he thought was required to be framed and the trial Court failed to frame. The learned Asst. Judge also did not notice any defect or irregularity in the proceeding which has affected the merits of the case. In fact, therefore, he could not have reversed or substantially varied the decree passed by the trial Court and could not have remanded the matter to the trial Court for giving fresh opportunity to the parties to represent their case, to raise issues and to lead evidence on all issues afresh.
18. As regards power of the appellate Court to remand the case to the trial Court, specific conditions are to be found in Order 41 Rules 23 and 23A of the C.P. Code. The said provisions are reproduced hereunder:
23. 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, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the Register of Civil Suits, and proceed to determine the suit, and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23A. Where the Court from whose decree an appeal is preferred has disposed off the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
19. Mr. R.N. Shah, Learned Counsel appearing for the contesting respondents has fairly stated that Rule 23 Order 41 of C.P. Code can have no application to the present case as the judgment and decree passed by the trial Court was not one, where the suit was disposed of upon a preliminary issue. The suit was tried on all issues after recording evidence of both the parties and it was the decree in favour of respondent-plaintiff. It is, thus, clear that in the present case, the provisions of Rule 23 oder 41 can have no application.
20. It is undoubtedly true that Rule 23A which came to be introduced by Amendment Act, 1976 deals with residuary cases or other cases where the order of remand could be made by the appellate Court. The circumstances under which remand could be ordered in cases other than those covered by Rule 23 Order 41, it is provided that where re-trial is considered necessary, the appellate Court shall have some powers as it has under Rule 23 to direct as to what issue or issues shall be tried in the case so remanded. The learned Assistant Judge has not assigned any legal, proper, justifiable or cogent reason and has nowhere recorded his satisfaction that a retrial, in his opinion, was necessary. The power to remand under Rule 23A of Order 41 of C.P. Code is not to be exercised rashly and without sufficient cause. Order of retrial in any case unless it is absulutely necessary, is to be avoided. It shall have to be kept in mind by the appellate Court that a remand of a case after quashing and setting aside the decree of the trial Court with direction to reframe issues and to permit the parties to lead evidence once again is bound to add to miseries of the parties as ordinarily trial of a civil suit in the Courts in India consume minimum five to seven years time at the stage of trial and there are towns and cities where even suits are not tried in a period of a decade or more. The human patience of the litigating parties is by that time lost or exhausted and a feeling of dissatisfaction pervades the trial Court all throughout the country and order of remand, therefore, which is casually made without sufficient cause, without any justifiable reason and without stating as to why re-trial is necessary, is wholly unjustifiable both from the point of exercise of judicial discretion as well from the point of non-fulfilment of statutory provisions. In the opinion of this Court, Rule 23A of Order 41 is only to be invoked in rarest of rare or most exceptional cases when the appellate Court is for very convincing and cogent reasons to be recorded in writing is satisfied that a re-trial is necessary, failing which substantial miscarriage of justice would result. In my opinion, in the present case, in view of the most unsatisfactory, vague, ambiguous and nebulous statements and totally unconvincing and unjustifiable reasons given by the learned Asst. Judge, there was no justification to quash and set aside the judgment and decree passed by the trial Court and to direct re-trial of the suit after framing proper issues and after recording evidence afresh which may be led by the parties.
21. In view of the aforesaid legal position, the Second Appeal is hereby allowed and the judgment and decree passed by Mr. Viral Y. Desai, Asst. Judge, Valsad a t Navsari in Regular Civil Appeal No. 140 of 1986 dated 30-9-1995 is quashed and set aside and the aforesaid appeal is remanded to the Dist. Judge, Valsad at Navsari with direction to him to decide the same in accordance with law after hearing the parties. The judgment of this Court is directed to be sent to Mr. Viral Y. Desai, Asst. Judge, Valsad at Navsari with direction to him to read the same and to see to it that in future judgments and decrees of the trial Courts are not so lightly quashed and set aside on grounds which are totally non-existent, jejune and unjustifiable in law.