Patna High Court
Deonandan Ojha And Anr. vs Ramdeyal Ojha And Ors. on 3 December, 1969
Equivalent citations: AIR1971PAT102, AIR 1971 PATNA 102
ORDER B.N. Jha, J.
1. The suit for redemption of the mortgage dated 5-9-1916 filed by opposite party No. 1 was dismissed by the trial court. Thereafter he filed an appeal in the court below. During the pendency of the appeal an amendment of the plaint was allowed so far the relief portion of the plaint is concerned. By the relief the plaintiff sought to get his title declared in respect of half of the suit lands for which he wanted recovery of possession also. Originally the suit for redemption was in respect of half of plots 1403, 1405 and 1406 of khata No. 262, By the amendment a fresh Schedule II was Inserted and the aforesaid three plots with entire area were mentioned in that Schedule. A further relief was added that if in the opinion of the court half share of the plaintiff in Schedule II land had not been partitioned a decree for partition by appointment of a Pleader Commissioner be passed.
The court of appeal below by its order dated 17-6-1966 directed the amendment of the plaint. The respondent had objected to the amendment of the plaint on the ground that the proposed amendment would affect the nature of the suit. The court observed as follows:
"The plaintiff does not want to add any more facts in the plaint or change the facts already alleged. In view of the findings of the trial court that the defendants are not mortgagees, he only wants an adjudication of the title on the evidence already adduced and for recovery of possession. In my opinion, this will not change the nature of the suit and the respondents shall not be prejudiced in any way thereby."
The suit had been valued at Rs. 45/- only, the amount of the consideration money of the mortgage. The plaintiff, therefore, valued the suit land for the purpose of adjudication of the title at Rs. 1000/- and the court also allowed the valuation of the suit to be amended. The plaintiff was required to file ad valorem court-fee on that valuation which was paid by him.
The petitioners thereafter filed a Civil Revision Application in the High Court being Civil Revision No. 81 of 1968 against the order of amendment made by the lower appellate court- At the time of hearing of this civil revision application, it was thought desirable by the petitioners' lawyer to withdraw the application reserving, however, their right to take the objection in the second appeal against the decision of the lower appellate court. The appeal was heard by the Second Additional Subordinate Judge, Muzaffarpur, who, by his order dated 25-1-1969, set aside the judgment and decree of the trial court and remanded the case for the trial of the suit allowing the parties to adduce fresh evidence on the issues framed by him in his order of remand. Hence the petitioners have come up in revision to this Court.
2. Learned counsel for the petitioners urged before me that the learned Subordinate Judge was not justified in setting aside the judgment and decree of the trial court and remanding the case for fresh trial. He submitted that if in the opinion of the learned Subordinate Judge the three issues, that is (i) whether the plaintiff has got title to the lands in suit?, (ii) is the plaintiff entitled to the recovery of his possession over the suit land, as the owner of the land? and (iii) is the plaintiff entitled to partition of Schedule II lands, if so, for what share?, arose for consideration, recourse should have been taken to the procedure as laid down under Order 41, Rule 25 of the Code of Civil Procedure (hereinafter referred to as the Code) which runs as follows:
"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, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required:
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor."
Learned counsel, therefore, submitted that assuming that fresh issues had to be tried, findings should have been called for by the learned Subordinate Judge from the trial court after recording evidence on those issues. Learned counsel for the plaintiff-opposite party submitted that this order of remand could be treated as remand under Order 41, Rule 25 of the Code. The contention of learned counsel for the plaintiff-opposite party is without any substance.
This order of remand could not be treated as a remand under Order 41, Rule 25 of the Code. The lower appellate court has set aside the judgment and decree of the trial court. In a case of remand under Order 41 Rule 25 of the Code, the lower appellate court only frames issues and refers the same to the trial court and it directs the trial court to take additional evidence, if required. After the trial of the issues, the trial court is required to send the findings on the issues and the reasons therefor to the lower appellate court and thereafter the lower appellate court has to decide the appeal as a whole. This procedure has not been followed by the learned Subordinate Judge. Hence this order of remand cannot be treated as an order of remand under Order 41, Rule 25 of the Code. The court has remanded the case under its inherent powers. It is now well settled that where there is specific provision in the Code itself, resort to inherent powers for that purpose should not be taken. Therefore, this application could be disposed of on this very short point that the order of remand is bad in law and cannot be sustained.
3. Learned counsel for the petitioners further submitted that the issues which the learned Subordinate Judge has framed in this case should not have been framed and no direction should have been made for taking additional evidence on these issues. He submitted that the amendment was made only in the relief portion and it was made under Clear understanding that the plaintiff wanted to add no more facts in the plaint or to change the facts already alleged and that he only wanted an adjudication of his title and recovery of possession on the evidence already adduced. This contention was also raised before the lower appellate court but it overruled the objection on the ground that the petition of amendment did not show that the appellant-plaintiff had expressed his desire that no further evidence would be led on his behalf if the amendments were allowed. Learned advocate for the petitioners was also asked to point out if any commitment in writing had been made by the plaintiff that he would not lead any more evidence but nothing was pointed out to the court. It is now well settled that the best evidence of the fact as to what happened before the court is what is recorded by the Judge in his order. The parties are precluded to challenge the correctness of the statement made by the court in the order. It can only be changed if the Judge himself says that he incorrectly recorded the order or it did not so happen but by mistake that was recorded or if both the parties agree that what is recorded by the court is not correct: see the decision of the Supreme Court in Bank of Bihar v. Mahabir Lal, 1964 BLJR 1 at p. 4 = (AIR 1964 SC 377 at p. 380). Every undertaking by a party is not given before the Court in writing. Counsel gives undertaking and the Court accepts that undertaking and proceeds on that undertaking and passes orders. It is as good as an undertaking given by a party himself in writing and is binding on him. Therefore, it was rightly pointed out by learned counsel for the petitioners that the learned Subordinate Judge was not right in giving a go-by to the undertaking given by the plaintiff before the lower appellate court while obtaining an order for amendment of his plaint.
4. Learned counsel for the petitioners further submitted that the three Issues which have been framed by the court of appeal below do not arise to be tried afresh. On the other hand, learned counsel for the opposite party vehemently submitted that those issues should be tried on the pleadings after the amendment. Whatever may be, it is for the court of appeal below to direct its mind to the consideration of various issues for the decision of the appeal, but they have to be tried on a consideration of the evidence already on the record in view of the undertaking given by the plaintiff in the court below that no additional evidence will be adduced in this case.
5. For the reasons stated above, the application is allowed, the judgment and order of remand dated 25-1-1969 are set aside and the case is remanded to the lower appellate court for a decision of the appeal itself on the evidence already on the record of the case. The costs will abide the result.