Allahabad High Court
Indraj Singh vs Kashi Ram on 19 June, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Reserved A.F.R. Case :- SECOND APPEAL No. - 567 of 1995 Appellant :- Indraj Singh Respondent :- Kashi Ram Counsel for Appellant :- H.N. Sharma, Akhtar Ali, Anupam Kulshreshtha, Manish Mishra Counsel for Respondent :- Pramod Jain Hon'ble J.J. Munir,J.
1. ''You can lead a horse to water but you can't make it drink'. The facts of this case bear reaffirming testimony to the wisdom of this proverb.
2. This is a defendant's Second Appeal arising from a Suit for Specific Performance of an agreement to reconvey the suit property and recovery of possession. The suit property is agricultural land bearing Khasra no.694, admeasuring 2 bigha, 9 biswa and 3 biswansi, situate at Mauza Rampur, Pargana and District Muzaffar Nagar.
3. The Appeal has been brought by the defendant, Indraj Singh from the appellate decree of Sri Ram Surat, the then Second Additional District Judge, Muzaffar Nagar, dated 31.03.1995, dismissing Civil Appeal no.234 of 1976 with costs, and affirming an original decree of Sri D.C. Srivastava, the then Additional Civil Judge, Muzaffar Nagar, dated 27.08.1976, decreeing with costs Original Suit no.64 of 1974 for the relief mentioned hereinbefore.
4. The decree of the Court of first instance was affirmed earlier by the Lower Appellate Court in Civil Appeal no.234 of 1976 by its judgment and decree of 30th April, 1977. The said decree was set aside by this Court in Second Appeal no.1732 of 1977 with an order of remand to the Lower Appellate Court requiring the appeal to be decided afresh. It is in consequence of the order of remand made by this Court in the Second Appeal, last mentioned that the impugned appellate decree has come to be passed.
5. The defendant who has failed before the Lower Appellate Court, a second time, has brought the present Second Appeal.
6. Kashi Ram, the plaintiff-respondent (for short the plaintiff) instituted Original Suit no.64 of 1974 with allegations to the effect that the defendant on the plaintiff's request lent him a sum of Rs.2500/-. The plaintiff could not repay the debt. Rather, he was in further need of Rs.2000/- that led him to request the defendant again. The defendant agreed to lend a further sum of Rs.2000/- on condition that the suit property be conveyed by the plaintiff to the defendant for a period of three years with a covenant that if within this period of three years, the plaintiff would liquidate the debt by repaying a sum of Rs.7000/- to the defendant, the defendant shall reconvey the suit property in favour of the plaintiff by a registered conveyance, and that thereupon the entire debt, the principal and accrued interest included, shall stand discharged. It is the plaintiff's case that he needed the money, and, therefore, agreed to the terms. The plaintiff, in consequence, executed a registered sale deed dated 27.07.1971 transferring the suit property in favour of the defendant. The sale deed carried a recital that a sum of Rs.7000/- has been advanced by the defendant. It is pleaded that the plaintiff received a sum of Rs.4500/- (and not Rs.7000/-) in the manner that Rs.2500/- were received by the plaintiff as loan from the defendant, and further that Rs.2000/- (also by way of loan) were received by the plaintiff from the defendant. Thus, according to the plaintiff, he received a total sum of Rs.4500/- in loan from the defendant. The plaintiff's case is that a sum of Rs.7000/- was shown as consideration in the sale deed, where the additional sum of Rs.2500/- accounts for the interest payable on the principal of Rs.4500/-, which the plaintiff had promised to pay back within the time period of three years. The plaint case shows that the plaintiff was to remain in possession of the suit property.
7. There is a pleading also to the effect, on behalf of the plaintiff, that the defendant secured the plaintiff's thumb impressions on some blank papers. The plaint case then proceeds that contemporaneously with the execution of the sale deed dated 27.07.1971 in favour of the defendant by the plaintiff, an agreement dated 27.07.1971 was also executed between the plaintiff and the defendant, where the defendant agreed to reconvey the suit property to the plaintiff on the following conditions:
"(a) that in case the plaintiff or his heirs paid a sum of Rs.7000/- to the defendant or his heirs, the defendant or his heirs would execute a sale deed in favour of the plaintiff or his heirs (reconvey the suit property);
(b) the expenditure towards execution of the sale deed (re-conveyance) would be borne by the plaintiff;
(c) in the event the defendant or his heirs showed any slackness or refuse to execute a deed of re-conveyance to the plaintiff or his heirs, it would be open to the plaintiff to enforce execution of the sale deed (re-conveyance) through an action brought for the purpose in Court; and
(d) it was also covenanted that in the eventuality of the plaintiff failing to get a sale deed executed in his favour, on or before 26.07.1974, the rights of the plaintiff to enforce re-conveyance would be extinguished."
8. It is then pleaded in paragraph no. 4 of the plaint that the plaintiff asked the defendant to receive the contracted sum of Rs.7000/- and execute a sale deed in favour of the plaintiff, but to no avail. The plaintiff was, therefore, compelled to serve a notice dated 14.06.1974 through his learned Advocate by registered post calling upon the defendant to execute a sale deed and get it registered in favour of the plaintiff, upon receipt of the contracted sum of Rs.7000/-. The notice aforesaid fixed 15th July, 1974 as the date on which the defendant may execute the sale deed. It is the plaintiff's case that the said notice was answered by the defendant taking an incorrect stand that it was agreed between parties that in addition to the sum of Rs.7000/-, interest would also be payable, which amounted to Rs.6,350/-. It is pleaded specifically that no such term regarding payment of interest was ever contracted by parties.
9. It is averred that on 15th July, 1974, the plaintiff with Rs.7000/- in hand to be paid to the defendant, along with requisite expenses for the execution of a sale deed, went to the office of the Sub-Registrar, Muzaffar Nagar, but the defendant did not turn up. Thereupon, the plaintiff also made an application to the Sub-Registrar. It is specifically pleaded in paragraph no. 7 of the plaint that the plaintiff has always been ready and is still ready to get the sale deed executed, and further that he has always been ready and is still ready to perform his part of the contract. However, faced with a denial by the defendant, the plaintiff brought this suit for Specific Performance of the agreement to reconvey. Further, relief for recovery of possession of the suit property was sought that in case the Court comes to the conclusion that the plaintiff is not in possession, he may be delivered possession.
10. The defendant in his written statement has denied the plaintiff's case on allegations that it is incorrect to urge that the plaintiff received Rs.4500/- only. It is averred that Rs.5000/- were advanced to the plaintiff initially and Rs.2000/- were paid before the Sub-Registrar. It is pleaded that it was covenanted between parties that interest would be chargeable on the sum of Rs.7000/- at the rate of Rs.2/- per mensem, payable annually. It is also pleaded that in the event of default in the payment of interest, compound interest would become chargeable. The defendant has admitted that it was agreed between parties that the plaintiff would retain possession of the suit property for three years and that he will bear expenses of the sale deed (re-conveyance), which was covenanted to be executed within the time period of three years. In the event of default on the plaintiff's part to get a deed of re-conveyance executed in his favour, he would loose his right to secure re-conveyance of the suit property. It is pleaded by the defendant that he was entitled to receive a sum of Rs.13,350/- on account of the transaction, but the plaintiff was not willing to pay the aforesaid sum of money. The plaintiff offered a sum of Rs.7000/-, in consideration for the re-conveyance contracted. It is, therefore, claimed that there was breach of the plaintiff's part of the agreement to reconvey the suit property. It was also pleaded that the plaintiff was not willing to get the sale deed executed. The fact that expenses to secure the deed of re-conveyance were to be borne by the plaintiff, is not disputed. But, the other plea that the defendant had secured the plaintiff's thumb impression on several blank papers was denied. Then there is this crucial plea in the written statement that the agreement to reconvey the suit property does not express the entire agreement between parties, or their intention in all its fullness and detail. The agreement is liable to be rectified. It is also the defendant's case that in the event the agreement to reconvey is rectified to bring it in accord with the true intention of parties, the plaintiff would loose his right to re-conveyance on the terms that he has pleaded. It is the further case of the defendant that he did appear before the Sub-Registrar on 15.07.1974, where he met the plaintiff. The plaintiff wanted an extension of time for performance of the suit agreement which was not acceptable to the defendant. It is, thus, the defendant's case that the plaintiff committed breach of contract. Upon the plaintiff refusing to get the property re-conveyed, the defendant took possession of the suit property. The suit property was mutated in the defendant's name, who is in possession. On the strength of the aforesaid case, the defendant asked the suit to be dismissed.
11. Based on the pleadings of parties, the following issues were struck:
"1. Whether the defendant agreed to pay interest at the rate of Rs.2% per month as alleged in para II of the W.S. on the amount of Rs.7000/- the sale consideration and the property in suit was to be reconveyed to the plaintiff on the said conditions as alleged in para 11 of the W.S.?
2. Whether the plaintiff or the defendant committed the breach of the terms of the agreement for sale in suit dated 7.7.1971 as alleged?
3. To what relief, if any, is the plaintiff entitled?
4. Whether the plaintiff is in possession on the plot in suit?
5. Whether the agreement for resale in suit is liable to be rectified for the reasons mentioned in para 3 of the W.S. 13 Ka?"
12. The Trial Court decided issue no.4 in favour of the defendant holding him to be in possession. Issues nos.1 and 5 were dealt with together by the Trial Court and answered in the manner that the 5th issue was decided against the defendant, holding that the agreement to reconvey was not liable to be rectified, and likewise, issue no.1 also was decided against the defendant holding that there was no covenant to pay interest or compound interest, over and above the sum of Rs.7000/-, as a condition precedent to re-conveyance. In answer to issue no.2, the Trial Court considered the question of readiness and willingness and held in favour of the plaintiff with an answer to the issue in terms that it was the defendant who committed breach of the contract to reconvey. On these findings, the Trial Court decreed the suit.
13. Aggrieved, the defendant preferred Civil Appeal no.234 of 1976 to the District Judge, Muzaffar Nagar. This appeal on assignment came up for determination before the llnd Additional District Judge, Muzaffar Nagar on April, 30th, 1977. The learned Additional District Judge by his judgment and decree dated 30.04.1977 dismissed the appeal with costs, and affirmed the Trial Court.
14. The defendant dissatisfied, carried a Second Appeal to this Court being Second Appeal no.1732 of 1977. The appeal was allowed by this Court vide judgment and order dated 26.03.1993, setting aside the decree of the Lower Appellate Court with a remand to that Court to hear and decide the appeal afresh in accordance with law. The decision on remand was to be rendered bearing in mind the guidance in the judgment of this Court.
15. Civil Appeal no.234 of 1976 was, thus, restored to file of the Lower Appellate Court, and heard afresh. The Lower Appellate Court by its judgment and decree dated 31.03.1995 has dismissed the appeal with costs and affirmed the Trial Court, again. It is against this decree of the Lower Appellate Court that the defendant is now in Appeal.
16. At the time when this Appeal was heard under Order LXI Rule 11 CPC, the following order was passed on the memorandum of Appeal, on 18.05.1995:
"Heard learned counsel for the appellant.
It is argued that the Ist appellate Court has failed to comply with the directions given by this Court in the remand order dated 26.3.93 which is Annexure 3 to the stay application.
Second appeal is admitted.
Issue notice."
17. Heard Sri Anupam Kulshreshtha, learned Counsel for the defendant and Sri Pramod Jain, learned Senior Advocate assisted by Sri R.P. Srivastava, learned Counsel appearing on behalf of the plaintiff. During the course of hearing on 13.03.2019, though much was made by Sri Anupam Kulshreshtha about the manifest error of law committed by the Courts below in patently misconstruing the provisions of Section 26(1)(b) & (c) read with sub-Sections (2) and (4) of Section 26 of the Specific Relief Act, it was pointed out by this Court to learned Counsel appearing for the parties that there was no substantial question of law framed on this point at the time of admission of this Appeal to hearing. Accordingly, on 13.03.2019, the following substantial question of law was framed by this Court:
"Whether rectification to an instrument based on a plea of fraud or mutual mistake of the parties can be sought by the defendant in a suit relating to a right arising under such instrument without a specific plea in the written statement to that effect?"
18. It must be remarked here that the order dated 13.03.2019 mentions that the question above extracted is being framed as a further substantial question of law, that arises for consideration in this Appeal, apart from the question on which this Appeal has been admitted. This order came to be passed on the assumption that this Court's note of the argument advanced by the learned Counsel for the defendant constituted a substantial question of law as recorded in the order dated 18.05.1995, admitting the Appeal to hearing. But, a little further into the hearing, it was agreed by learned Counsel for both parties that the order of admission passed by this Court on 18.05.1995, in fact, did not frame any substantial question of law or was any other substantial question of law framed later, on which this Appeal could be heard except the one framed on 13.03.2019.
19. This Court also finds that the order dated 18.05.1995 does no more than to take notice of the submissions of the learned Counsel in support of the motion to admit this Appeal to hearing, but does not frame any substantial question of law. The learned Counsel appearing for both sides, therefore, by agreement limited and confined their submissions to the substantial question of law extracted above, until conclusion of hearing on 26.04.2019 when judgment was reserved. Notwithstanding the very comprehensive submissions of parties on the substantial question of law under reference, it appeared to this Court that certain vital aspects of the matter that stemmed from the substantial question of law on which parties had so elaborately addressed, required clarification. Accordingly, this appeal was posted for further hearing on 20.01.2020. It was heard on 23.01.2020 for a short while and then again on 03.02.2020. On 03.02.2020, two other substantial questions, that are an inseparable part of the one framed on 13.03.2019, were further framed for reasons assigned. The relevant part of the order dated 03.02.2020 framing the two additional substantial questions of law, numbered as questions nos. (1) and (2) is extracted below:
"During the course of hearing, certain clarifications were required of the learned counsel appearing for the parties regarding non decision of the issue about rectification of the agreement by the Lower Appellate Court on the basis of oral evidence, that being the purpose for which this matter was remanded to the Lower Appellate Court by this Court, vide judgment and order dated 26.03.1993, passed in Second Appeal No. 1732 of 1977. There was also this issue about the standard by which a plea seeking rectification on ground of mutual mistake to a solemn document of parties ought to be proved. This question arose also during the course of hearing. This Court finds that for the effective disposition of this appeal, two additional questions are required to be framed further for the reasons given above. These reasons have been recorded bearing in mind the decision of Supreme Court in Vijay Arjun Bhagat and others vs. Nana Laxman Tapkire and others 2018 (6) SCC 727. In the opinion of this Court, the following additional substantial questions of law arise for consideration in this appeal:
"(1) Whether in the event of remand to the first Appellate Court requiring it to decide a certain point, or issue arising between parties, the Appellate Court is bound to decide the said question, even if the party being the appellant before it, does not urge the point on which the matter has been remanded to the first Appellate Court?
(2) Whether in the case of a plea of mutual mistake under Section 26(1)(c) of the Specific Relief Act being raised by the defendant, the defendant is required to prove the case of mutual mistake by the most satisfactory evidence of a very(sic high) standard?
.........."
20. At the resumed hearing on 03.02.2020, learned Counsel for the parties addressed this Court very elaborately on all the substantial questions of law, including the one on which they had earlier been heard. The hearing remained inconclusive on that date and was adjourned to 10.02.2020. On 10.02.2020, this appeal was adjourned without hearing to 18.02.2020. On the last mentioned date, learned Counsel for both sides concluded their submissions, and judgment was reserved.
21. Sri Anupam Kulshreshth, learned Counsel for the defendant and Sri Pramod Jain, learned Senior Advocate for the plaintiff, very elaborately addressed this Court on the requirements of Section 26(1)(b) & (c) read with sub-Sections (2) and (4) of the Specific Relief Act, asking this Court to answer the substantial question of law framed on 13.03.2019 and the second question framed on 03.02.2020, in the manner urged by them. Before, this Court may venture to consider those two questions, it would be apposite to place in a different sequence the three substantial questions of law for an answer. The reasons to do so is that an answer to substantial question of law no.(1) framed on 03.02.2020 one way, might obviate the necessity to answer the other two.
22. This Court has carefully perused the judgment of the Trial Court, the judgment in appeal earlier rendered that was set aside by this Court in second appeal with an order of remand, the judgment of this Court in Second Appeal no.1732 of 1977, and, of course, the judgment passed by the Lower Appellate Court, now under appeal. A perusal of the judgment passed by the Trial Court shows that it did address the question relating to rectification of the contract, subject matter of action here. It appears that the issue was elaborately tried by the Trial Court and the parties heard fully, as the judgment reflects. The Trial Court answered issue no.(5) about the defendant's plea for a rectification against him in the following words that appear at the end of a very elaborate finding based on evidence:
"Thus, after considering the entire material on record and the circumstances of the case, I am of the view that there was no agreement to charge interest and compound interest on 24% per annum over Rs.7000/- and that Rs.4500/- only were advanced to the plaintiff. The result, therefore, is that there is no case of mutual mistake and as such the defendant is not entitled to get the agreement for resale rectified. Issue no.(5) is, therefore, answered in negative."
23. A perusal of the judgment earlier rendered in appeal on April, the 13th 1977 shows that rather cryptic findings of affirmation were recorded by the learned Additional District Judge on the issue relating to mutual mistake in the drawing up of the contract, subject matter of action. This Court need not say anything further about that judgment since it has already been set aside in the earlier appeal from the appellate decree by this Court. It is nevertheless of prime importance to look into the terms of the judgment of remand passed by this Court in Second Appeal no.1732 of 1977. This Court while allowing the earlier second appeal took careful note of the defendant's plea about a claimed rectification to the contract which according to him had not been considered by the Lower Appellate Court in the judgment, then under challenge. This Court was of opinion that the plea seeking rectification or reformation of the contract, subject matter of action, required a careful decision by the Lower Appellate Court in view of the provisions of Section 26 of the Specific Relief Act and Section 92 of the Indian Evidence Act. This Court, therefore, ordered a remand to the Lower Appellate Court with a clear guidance that the said Court would decide this point about the claimed rectification by the defendant on the basis of evidence on record. At the same time, the judgment of this Court made open to the parties all other pleas that they may be advised to urge in support of their respective cases. The judgment was, therefore, an open remand to the Lower Appellate Court for decision of the appeal afresh. Nevertheless, the judgment did, particularly, open an opportunity to the defendant to canvass his plea about rectification to the contract, subject matter of action, in terms that he had pleaded. The relevant part of the judgment of this Court in the earlier second appeal is quoted infra:
"In para 13 of the written statement the defendant had pleaded that the agreement deed Ext. 1 was rectified as there was an oral agreement for payment of interest. Learned counsel for the appellant has relied section 26 of the Specific Relief Act and section 92 of the Evidence Act. He has also referred to the decision of this Court in Brij Kishore Rai versus Lakhan Tewari AIR 1978 Alld. 314. In the said decision it was held that even if a document is silent as to interest, oral evidence with regard to the terms and conditions of the loan and right of interest should be allowed. He has also referred to Radha Singh versus Munshi Ram AIR 1927 Cal. 605. On the other hand learned counsel for respondent has contended that there was no error of law in the impugned judgment. He has also urged that only a sum of Rs.2000/- was paid to the plaintiff and not Rs.7000/- at the time of sale deed.
So far as amount which was paid to the plaintiff is concerned, a perusal of the sale deed 27.7.71 shows that there is mentioned that a sum of Rs.5000/- was paid to the plaintiff before execution of the sale deed. Hence, primafacie I cannot accept this contention of the learned counsel for the respondents, although I am not deciding this point finally. In the judgment of the lower court dated 30.4.77 there is no discussion as to whether the version of the defendant-appellant about the alleged oral agreement for payment of interest is correct or not. When there was a specific plea of the defendant-appellant that there was oral agreement regarding payment of interest then the lower appellate Court should have considered this plea on the basis of evidence on record and giving his findings as to whether this plea of the defendant is correct or not. A perusal of the impugned judgment shows that the lower court has not at all considered whether there was an oral agreement for payment of interest or not and it has only observed that since the term and condition for reconveyance are clearly stated in the agreement there is no question of any oral agreement for payment of interest. In my opinion this view of the Court below is not correct and it should have considered the plea about an oral agreement of payment of interest. No doubt after considering the plea the Court below could have held that there was in fact no such oral agreement but the court below could not have ignored this plea totally."
24. The Lower Appellate Court while writing the impugned judgment has dealt with the various points, urged before it by the defendant. The judgment shows that the Lower Appellate Court first considered the defendant's case about the plaintiff's failure to prove his readiness and willingness to perform the part of the contract obliging him. The Lower Appellate Court answered the point against the defendant and in the plaintiff's favour. The next point considered is about the defendant's plea that the suit is premature. This too was answered against the defendant. A third point that has been considered is based on the defendant's plea that time is essence of the contract and the plaintiff did not pay the agreed consideration for re-conveyance within that time. This point has also been answered against the defendant and in the plaintiff's favour. The fourth and the last point urged, as the impugned judgment would show, is about the plaintiff not coming to Court with clean hands. The Lower Appellate Court has found against the defendant on this count, as well.
25. In an unnumbered and the penultimate paragraph of the impugned judgment, the Lower Appellate Court has recorded a specific finding in the following words:
"No other points (sic point) has been argued by the learned counsel for the defendant-appellant."
26. A reading of the judgment impugned from one end to the other, together with the finding above extracted, does not spare any doubt that the defendant did not canvass at all before the Lower Appellate Court his plea based on a case for rectification of the contract.
27. Mr. Kulshreshtha and Mr. Jain appearing for the parties had, during earlier of the two hearings, urged this point about the case of parties regarding rectification of the contract with much emphasis and their characteristic erudition. Much to the dismay of this Court, the learned Counsel appearing for both parties and the Court too somehow glossed over the fact that this point though fully tried, heard and decided by the Trial Court, was apparently not argued at all before the Lower Appellate Court; and, the defendant does not seem to have argued this point, even though it was the foundation of the judgment of remand earlier passed by this Court, at the instance of the defendant, in second appeal. On account of the aforesaid glitch that occurred during the earlier hearing, causing it to go awry, this Court found it imperative to post the matter for further hearing. At the re-hearing, this Court pointed out to Mr. Kulshreshtha the fact that the defendant had not at all argued the point that was the basis of the judgment of remand. Mr. Kulshreshtha, again in his characteristic fairness, admitted that the point was not argued before the Lower Appellate Court. Mr. Jain too, conceded that this aspect had escaped his attention during the earlier hearing.
28. It is not the case of the defendant before this Court that the point that had been so vociferously argued before this Court during the earlier hearing and formed the basis on which the earlier judgment of remand inter partes was founded, was indeed argued but not decided by the Lower Appellate Court. The first and the second grounds set out in the memorandum of appeal, also do not disclose a complaint to the effect that the point relating to rectification, which the Lower Appellate Court was asked by this Court to decide in terms of the judgment of remand, was in fact argued. There is no grievance remotely made in the present appeal, that the Lower Appellate Court has incorrectly recorded for a fact the points canvassed in support of the appeal, or the fact mentioned in the impugned judgment that no other point was urged. This Court is, thus, assured for a fact that the point relating to rectification of the contract, directed to be considered by the judgment of remand, was never pressed before the Lower Appellate Court by the defendant. This satisfaction of the Court is founded on a careful scrutiny of the impugned judgment and the grounds urged in this appeal on the one hand, as also the very fair concession of Mr. Kulshreshtha in this regard, on the other. Upon a note of the most remote caution, this Court finds that a plea to the effect that the point relating to rectification was indeed argued on behalf of the defendant but not decided, even if urged as a ground in the present appeal, could never have been examined by this Court. That could be done by means of a review alone, before the same Judge who has rendered the judgment impugned. The aforesaid principle of law is too well settled to call attention to authority. Nevertheless, an eloquent statement of the principle is to be found in the decision of their Lordships of the Supreme Court in State of Maharashtra vs. Ramdas Shrinivas Nayak and another, AIR 1982 SC 1249.
29. Mr. Kulshreshtha, confronted with the aforesaid facts submitted before this Court, that it is for this reason that the order dated 18.05.1995 admitting this appeal refers to the issue whether directions carried in the order of remand, dated 26.03.1993, were observed in breach by the Lower Appellate Court. However, as noticed earlier in this judgment, the order admitting this appeal to hearing does not formulate any substantial question of law. It is for this reason that this seminal question about the obligation of an inferior Appellate Court to decide the particular point which has been remanded to it by a superior court, escaped attention at the earlier hearing. Mr. Kulshreshtha with reference to substantial question of law no.(1) (the one formulated vide order dated 03.02.2020) submits before this Court that the judgment of the Lower Appellate Court is not only one that is manifestly illegal, but a nullity for the reason alone that it fails to carry out the terms of the order of remand. He submits that notwithstanding the defendant's failure to press the point relating to rectification that this Court required the Lower Appellate Court to decide on remand, it was the Lower Appellate Court's obligation to decide, nevertheless. According to the learned Counsel for the defendant, the Lower Appellate Court was bound by the order of remand to decide the point relating to rectification of contract, with reference to Section 26 of the Specific Relief Act and Section 92 of the Indian Evidence Act, notwithstanding the defendant's silence about it. According to Mr. Kulshreshtha, the Lower Appellate Court was obliged to decide this point, by command of this Court, on the basis of evidence, where the said Court would also be required to examine the validity of the findings of the Trial Court elaborately written on this issue. Learned Counsel for the defendant in support of his submission has called attention of this Court to a decision of the Madras High Court in Konappa Mudaliar vs. Kusalaru alias Munuswami Pillai, AIR 1970 MAD 328. In paragraph 3 of the report in Mudaliar (supra), it has been held:
"3. The question whether it was open to the lower appellate Court to apply the provisions of the Limitation Act of 1963 notwithstanding the order of remand directing it to consider the question from the point of view of Art. 142 of the Limitation Act 1908 presents no difficulty whatsoever. It was not open to the lower appellate Court to do anything, but to carry out the terms of the order of remand, which it has done. Even if it considered that the order of remand made by this Court on the earlier occasion was not in accordance with law, it was not open to that Court to apply what it might consider to be the correct provision of law. The decision of the Supreme Court on which reliance is placed for the appellant was rendered on 12-12-1968. This appeal was disposed of by the lower appellate Court after remand on 26-6-1964. On that date, the only decision that was binding on the lower appellate Court was the decision of the Full Bench of this Court. Therefore, the decision of the lower appellate Court was correct on the facts of the case."
(emphasis supplied)
30. The decision in Mudaliar (supra) was rendered in the context of facts where the plaintiff had apparently sued for possession of a house that he had purchased from the wife of the owner's son, the owner's son having left his father's house some 13 years before the suit was instituted. The suit was filed against the vendee from the father's widow, that is to say, the mother-in-law of the plaintiff's vendor. The two Courts below had held title in favour of the plaintiff. In earlier appeal to the High Court by the defendant, there was a remand to the Lower appellate Court requiring it to record a finding whether the plaintiff was in possession within 12 years of the suit. The Lower Appellate Court post remand had held on the basis of evidence on record that the plaintiff was not in possession within 12 years of the suit. By time a second appeal was brought by the plaintiff, the law of limitation had undergone a change. Under the Limitation Act of 1908, a suit for possession based on title was governed by Article 142, where a plaintiff holding title, in order to succeed, had to show his possession within 12 years of suit. It was in the context of the aforesaid provisions of the old Limitation Act, that in the earlier appeal, the High Court had remanded the matter to the Lower Appellate Court to record a finding whether the plaintiff was in possession within 12 years of suit. It appears that by time the appeal came up for decision before the Lower Appellate Court, the Limitation Act of 1963 had replaced the old Act, where Articles 64 and 65 took place of Article 120 of the old Act. Under the Limitation Act, 1963, there was no requirement for a person holding title to succeed in his suit for possession to show that on the date of suit, within a particular period of time, he had been in possession. The position of law regarding the applicability of the Limitation Act of 1963 to an action commenced under the old Limitation Act was that the new Act applied generally, and not the Act of 1908, where the suit was taken in appeal etc. after commencement of the Act of 1963. The only exception was Section 30 of 1963 Act, which provided that in the event a shorter period of limitation under the new Act was prescribed, the provisions of the Act of 1908 would continue to govern the suit. The suit here did not fall under Section 30 (supra), and, therefore, the provisions of Section 142 would not apply. The order of remand, as already indicated, required the Lower Appellate Court to decide the question about possession going by the provisions of Article 142 of the old Act. The Lower Appellate Court decided the appeal, after remand, on 26.06.1964. On 12.12.1968, their Lordships of the Supreme Court rendered decision in Nair Service Society Ltd. vs. K. C. Alexander and others, AIR 1968 SC 1165 holding that the provisions of Articles 64 and 65 are merely declaratory and not remedial. The legislative declaration was designed to cure the defect in the old Act, that required a title holder to prove his possession as well, within 12 years of his suit to recover possession. The effect of the decision of the Supreme Court was that the law would always be deemed to have been that the holder of title who successfully established it, would no longer be required in a surviving action, at whatever stage of proceedings, to further prove his possession within 12 years of suit. Under the changed law, it was for the defendant to prove, if he had to succeed in his defence, to show that he had been in adverse possession for the prescribed period. It was in the context of all this statutory change in the law about limitation and its interpretation by the Supreme Court in Nair Service Society Ltd. (supra), that the question arose whether the Lower Appellate Court, or for that matter even the High Court were bound to carry out and decide, according to the order of remand made in the earlier appeal. The Appellate Court decided in accordance with the order of remand, which meant in accordance with law under the old Act, governed by Article 142 thereof. It was in that context that it was held in Mudaliar (supra) that on the date the Appellate Court decided, it was bound by the order of remand and further that, the High Court too, in the appeal after remand was bound by its order of remand that had attained finality. It was also, in the context of the aforesaid facts that the principle about the utmost binding effect of an order of remand was approved. Mudaliar (supra) was not a case where the defendant after remand did not canvass the point relating to the plaintiff's failure to establish his possession over the suit property within 12 years of suit. It was a case where the defendant availed of the order of remand and pressed the point that the High Court required the Lower Appellate Court to decide after remand. Here, the defendant never pressed the point about rectification of the contract that he had failed to establish at the trial. He simply did not address the Appellate Court on that point. The question, therefore, would be whether the Lower Appellate Court is required to decide a point that it has been ordered to do afresh on remand by a Court of superior appellate jurisdiction, even though the defendant, that is to say, the appellant before it, who has the matter remanded to it, never urges that point. Is it the duty of the Appellate Court to decide a point remanded to it on the basis of the evidence on record even though the appellant before it never presses for its decision? This question which is the quintessence of the substantial question of law under consideration, would have to await answer until a little later in this judgment.
31. Mr. Anupam Kulshreshtha has next drawn support from the decision of this Court in Rama Kant vs. Board of Revenue and Ors., 2005 1 AWC 929 All. He has invited attention of the Court to paragraphs 7, 8 and 9 of the report in Rama Kant (supra), where it has been held thus:
"7. It is not open to an inferior Court or Tribunal to refuse to carry out the directions or to act contrary to directions issued by a superior Court or Tribunal. Such refusal to carry out the directions or to act in defiance of the directions issued by the superior Court or Tribunal is in effect denial of justice and is destructive of the basic principle of the administration of justice based on hierarchy of Courts in our country. If a subordinate Court or Tribunal refuses to carry out the directions given to it by a superior Court or Tribunal in exercise of its appellate power, the result would be chaos in the administration of justice.
8. The order of remand dated 22.11.1979, became final between the parties and same was not challenged. Thus, it was not open to the trial court being an inferior court to reframe fresh issues and to record fresh findings. The only course open to the trial court was to give finding on the two issues reframed by the first appellate court and decide the suit accordingly as directed in the order of remand. The trial court exceeded its jurisdiction by travelling beyond directions contained in the remand order and this vital aspect have been illegally ignored by the court of first appeal as well as second appeal.
9. The arguments advanced by the learned counsel for the respondents that no prejudice has been caused and substantial justice has been done between the parties cannot constitute a ground to affirm an order passed in disregard of the directions issued by the higher court. In the case of Bhopal Sugar Industries Limited v. Income-tax Officer, Bhopal, AIR 1961 SC 182, where the Income-tax Officer refused to carry out the directions issued by Income Tax Appellate Tribunal in exercise of its appellate power in respect of an order of assessment made by him the Hon'ble Apex Court has observed as follows:
"In such a case a writ of mandamus should issue ex debito justiciae to compel the Income Tax Officer to carry out directions given to him by the Income Tax Appellate Tribunal. The High Court would be clearly in error if it refuses to issue a writ on the ground that no manifest injustice has resulted from the order of the Income Tax Officer, in view of the error committed by the Tribunal itself in its order. Such a view is destructive of one of the basic principles of administration of justice.""
32. Again, it is beyond cavil that an order of remand by a superior court directing an inferior court to decide a particular point, obliges the latter to decide in accordance with the directions of the superior court. The decision in Rama Kant (supra) is distinguishable in point of law on account of the fact that there it was not a case where the petitioner before this Court, who complained of violation of the order of remand by the Trial Court did not press his case on issues nos.1 and 2, involved in the suit, that were remanded by the Appellate Court to the Trial Court for decision afresh. This is certainly not the case here.
33. Learned Counsel for the defendant last called to aid the decision of the Supreme Court in Bal Govind Lohia vs. Narayan Prasad Lohia and others, (2009) 17 SCC 349. Learned Counsel has drawn the attention of the Court to paragraphs 4 and 5 of the report in Bal Govind Lohia (supra), where it is held:
"4. On an earlier occasion, when the matter had come before us, this Court in Civil Appeal No. 1382 of 2002 made an order on 28-1-2003 [Narayan Prasad Lohia v. Nikunj Kumar Lohia, (2003) 2 SCC 251]. In that order, this Court noticed that the learned Single Judge had set aside the award on several grounds, which were not considered and decided by the Division Bench. When Civil Appeal No. 1382 of 2002 [Narayan Prasad Lohia v. Nikunj Kumar Lohia, (2003) 2 SCC 251] was heard by this Court, this Court noticed that the Division Bench had not expressed its views with regard to several findings made by the Single Judge on different grounds for setting aside the award. Cognizant of this fact, this Court remitted the matter to the Division Bench of the High Court with the following observations: (SCC p. 254, para 9) "9. Accordingly, we dispose of these appeals with the direction that the matters be remitted to the High Court for the Division Bench to consider the other grounds on which the learned Single Judge had set aside the award by its judgment and order dated 17-11-1998, which have not been considered by the Division Bench in its judgment and order dated 18-5-2000."
5. In view of the aforesaid limited or restrictive order of remit, it was necessary for the Division Bench of the High Court to consider the correctness of other grounds on which the learned Single Judge had set aside the award by his judgment dated 17-11-1998. Unfortunately, in the impugned judgment before us, it appears that the direction made while remitting the matter has not been noticed by the Division Bench. A reading of the impugned judgment does not indicate the views of the High Court with regard to the "other grounds" on which the Single Judge had set aside the award. Thus, we are of the view that the High Court has not complied with the conditions of the remit. Consequently, on this short ground alone, the appellant is entitled to succeed."
34. The decision of their Lordships in Bal Govind Lohia (supra) is again not an authority about the question as to consequences that would follow in the event a party, for whose benefit a cause is remanded to a lower Court for decision afresh on a specified point or points, does not at all press those point (s). This issue is not even remotely involved, considered or decided in Bal Govind Lohia (supra). This Court is, therefore, of opinion that the authority under reference is of little assistance to the defendant.
35. Sri Pramod Jain, learned Senior Advocate appearing for the plaintiff submits that it is not at all incumbent upon the Appellate Court to decide a point remanded to it by a superior court, where the appellant before it, does not urge that point in support of his appeal. He contends that by dint of the order of remand passed by a Court of superior appellate jurisdiction, the appellant is not entitled to a decision of the point remanded to the Appellate Court unless he supports his appeal pressing that particular point. According to Mr. Jain, the Appellate Court bears no obligation to decide a point remanded to it for decision by a superior court, undertaking that enterprise of its own, sans the appellant before it canvassing that point.
36. Mr. Jain says that non-address by the appellant post remand on a point required by the superior court to be decided afresh by the Appellate Court would work as a relinquishment of his right to canvass that point. He contends that the principles relating to relinquishment of a right by an individual, that includes a party to the lis, like the appellant before the Appellate Court, is well-acknowledged. He says that if an appellant relinquishes a particular plea that the Appellate Court has been required to decide on remand by a superior court, the appellant cannot claim any right based on the remand once he relinquishes. All that is required to be examined is whether in point of fact there was relinquishment. This fact according to the learned Senior Advocate is to be determined by the Court with reference to the record of proceedings and the judgment of the Appellate Court. Once the judgment of the Appellate Court shows that the appellant before it has not urged the point that the order of remand directed to be determined, relinquishment is to be accepted by a Court of superior jurisdiction. Mr. Jain, however, clarifies that the other fact required to be seen by a superior court is whether the appellant, who has chosen not to press a point that has been required by the order of remand to be decided by the Appellate Court, was at all aware about it. He submits that if it could be shown that the appellant who did not avail himself of the benefit of a remand order on the particular point required to be decided, was not at all aware about it, he may have a case to make out in a Court of superior jurisdiction, but not otherwise. Here, the learned Senior Advocate submits that there is not the slightest scope to say that the defendant, who was the appellant before the Lower Appellate Court, did not know the terms of the remand order or the point required to be decided by the Appellate Court. It is pointed out that the judgment and order of remand was passed in a case that was a second appeal before this Court, where the defendant was represented by learned Counsel, no less in stature than an Advocate of the High Court. Again, before the Appellate Court, the defendant was represented by a learned Advocate, practicing before the District Court. In these circumstances, according to Mr. Jain, it cannot be said that the defendant was not aware about his rights post remand, and what particular point was ordered to be decided by this Court at the instance of the defendant by the Appellate Court.
37. To sum up, the learned Senior Advocate submits that it cannot be a case where the defendant did not canvass the point regarding rectification of contract, in terms directed by this Court by the order of remand, because he was not aware about it. Rather, it was a decision consciously taken, well-advised by legal Counsel and, therefore, a fair and square case of relinquishment. This part of his submission regarding relinquishment, so to speak, Mr. Jain seeks to support on the authority of a decision of the Supreme Court in A.P. SRTC vs. S. Jayaram, (2004) 13 SCC 792. He has called attention of this Court to paragraph 5 of the report in A.P. SRTC (supra), where it was held:
"5. It was next submitted that the respondent should be deemed to have waived his rights under Circular No. 45/81 by submitting tender in response to the notice inviting tenders in the year 1984 and he must be held bound by the terms of the contract which he entered into pursuant to the tender submitted by him. The High Court has formed an opinion that the respondent cannot be deemed to have waived the right or the benefit available to him under Circular No. 45/81 because he was not even aware of the existence of the circular. To constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege (Basheshar Nath v. CIT [AIR 1959 SC 149]). Moreover, the circular itself stipulates the Corporation making an offer to the contractors for taking benefit of the policy decision and it is undisputed that the Corporation never made such an offer to the respondent. Inasmuch as there is a failure on the part of the Corporation to extend the benefit of the circular to the respondent, the Corporation cannot be permitted to take shelter behind its own wrong."
38. So far as the very painstaking and elaborate submission of Mr. Jain based on the principle of relinquishment is concerned, this Court is of opinion that the principle, properly so called belongs to the law relating to substantive rights; it is not so much about procedure governing the hearing of appeals. Relinquishment is defined in the Black's Law Dictionary, Eighth Edition (South Asia Edition) as, "The abandonment of a right or thing". The substantive rights of a party, involved in a case, are those that constitute his claim in the action. If a part of the claim were to be given up, it would be relinquishment; not if one or the other points or pleas, on the foot of which the claim is supported, is/ are given up at the hearing, or not urged at all. A particular point or plea on the foundation of which, besides others, a claim is sought to be established at the hearing of the appeal, is not canvassed or pressed, it would not involve the principle of relinquishment that governs the substantive rights of parties, expressed in the form of relief they seek in the action. Thus, the law relating to relinquishment need not be imported with all its niceties into the purely procedural domain of the law relating to the hearing of an appeal. This is not to say that a point, that is formally given up at the hearing of the appeal or not urged altogether, entitles a party to turn around later and fault the judgment for its non-consideration. Not canvassing a particular point involved in an appeal forbears a party, including the appellant, to say lateron that the judgment in appeal is bad for its non-consideration. This consequence in law is referable to the procedure about hearing of appeals, as already said; it may resemble relinquishment, but it is not that.
39. The attention of this Court has not been called to any authority where the question under consideration might have been decided. Indeed, the position that obtains on facts here, would be very rare to come by, if not altogether a freak. This is so because it would really be surprising that a point on which a cause is remanded to the Appellate Court by a Court of superior jurisdiction at the instance of a party, witnesses that party not addressing the Appellate Court on the very point that he/ she had secured a remand. A perusal of the entire scheme of Order XLI Code of Civil Procedure, does not indicate any special obligations for the Appellate Court to undertake an exercise of an inquisitorial nature about a point that the Appellate Court has been asked to decide by a superior court on remand. No doubt, there is ample authority that where a cause is remanded to an Appellate Court to decide a particular point or carries guidance to decide certain issues or points, those directions bind the Appellate Court if the appellant before it addresses the Court on those points/ issues. If, however, despite a remand order carrying a direction to the Appellate Court to decide a particular point together with the appeal afresh, as in this case and the appellant does not at all urge that point, there is nothing in Order XLI CPC or elsewhere under the Code, obliging the Appellate Court to decide the point. The hearing of an appeal post remand is in no way different from the hearing in the first instance, except that if a particular point is required to be decided by the judgment of the Superior Court, the Appellate Court would be obliged to decide the same in accordance with those directions that may carry some guidance about the law or the manner of its application. But, again to emphasize, the obligation would be attracted where the point is canvassed; not otherwise.
40. The reasons for these conclusions are to be found in the provisions of Order XLI Rules 23 and 23-A, Order XLII Rule 1, read in conjunction with Order XLI Rules 16 and 31 CPC. The provisions of Order XLI Rules 23 and 23-A are extracted below:
"23. Remand of case by Appellate Court.--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 a 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.
23-A. Remand in other cases.--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."
41. The provisions of Order XLII Rule 1, read:
"1. Procedure.--The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.
High Court Amendments Allahabad.--Substitute the following for Rule 1:
"1. The rules of Order XLI and Order XLI-A shall apply, so far as may be, to appeals from appellate decrees subject to the following proviso:
Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and unless the Court sees fit to dispense with either or all of them:
(1) a copy of the judgment on which the said decree is founded;
(2) a copy of the judgment of the Court of first instance; and (3) a copy of the finding of the civil or the revenue court, as the case may be, where an issue is remitted to such Court for decision." (22-12-1951)."
42. A perusal of the provisions of Rule 23 of Order XLI, CPC shows that this Rule and Rule 23-A are framed in the context of a remand by the Appellate Court to the Trial Court. The provisions of Rule 1 of Order XLII, CPC provide for the application of all the Rules carried in Order XLI, CPC to appeals from appellate decrees or what are commonly called, second appeals. However, the provisions of Rule 1 of Order XLII while making the provisions of Order XLI applicable to second appeals, make it explicit that the application of those Rules shall be mutatis mutandis. Now, the provisions of Rule 23 of Order XLI are concerned with a case where a suit has been disposed of on a preliminary point by the Trial Court and the decree is reversed in appeal. It provides that in the event of a reversal in a case envisaged by the said Rule, the Appellate Court may, if it thinks fit, order a remand to the Trial Court for a trial de novo. The Rule further empowers the Appellate Court that instead of ordering an open remand, the Trial Court may be restricted as to what issue or issues shall be tried in the remanded suit. In the latter case, the Trial Court would not be free to decide all issues framed by it, or those that it may further frame. Rather, where the Appellate Court restricts the Trial Court to decide a particular issue or issues on remand, the trial is to be confined to those issues alone and no other. However, there could be cases where apart from ordering a general remand, particular issues may be directed to be tried. Generally speaking, where a Trial Court is directed to determine specific issues along with a general remand or restricted to particular issues, the Trial Court would be bound to try and determine those issues. But, there could be a different result depending on the fact whether there is evidence already available on record; if available, whether further evidence is required to be led by parties, and, if required, whether further evidence is, in fact, adduced. Particularly different would be the case where there is no evidence available on record regarding an issue remanded and the party who bears the onus probandi (Section 101, Indian Evidence Act) does not lead any evidence. In all cases where some evidence is forthcoming, the Trial Court has to return findings on the issues, specifically required to be decided by the order of remand. In case, however, an issue, specifically required to be decided on remand, is one in relation to which no evidence has been adduced and the party who bears the evidential burden or onus probandi does not adduce any evidence, there is no scope for the Trial Court to return a finding on the issue. All that the Court can say is that no evidence was adduced and answer the issue against the party who bears the evidential burden.
43. The principles applicable to the case of a remand under Rule 23 of Order XLI CPC have been extended by Rule 23-A to all those cases where the suit is disposed of otherwise than on a preliminary issue and the Appellate Court after setting aside the decree, orders trial de novo. These provisions, as already said, have been extended in their application to a second appeal. A second appeal or an appeal from an appellate decree is heard by the High Court under Section 100 CPC. A second appeal is preferred from the decree of the Lower Appellate Court by a party to the appeal aggrieved by the decree, or by a non-party aggrieved thereby with leave of the High Court. These appeals are to be heard only on a substantial question of law, if involved. Since a second appeal is one preferred from the appellate decree, an order of remand by the High Court under Rule 23 or Rule 23-A of Order XLI, CPC may either involve a remand to the Trial Court or to the First Appellate Court. Since a remand to the First Appellate Court involves a re-determination of an appeal on all points, already raised and decided, but set aside in second appeal, a remand order may direct a general remand or a restricted remand for a decision of certain points alone, or a remand where together with a general remand, a particular point or points are directed to be decided by the First Appellate Court. There is no quarrel that the present case falls in the last category.
44. The obligations of the First Appellate Court under an order of remand would be conditioned by the nature of the appellate jurisdiction, which is essentially different from a trial. This holds true notwithstanding the fact that an appeal, particularly a first appeal, is a continuation of the trial. The nature and exercise of the jurisdiction is, however, essentially different. Before the Trial Court, the parties are on a level field, except the Rule as to burden of proof which requires the plaintiff to establish his case on its own strength and, of course, certain Rules relating to onus probandi on particular issues. In an appeal, there is an existing decree against one party, be it the plaintiff or the defendant, and the one who appeals, has a judgment against him which he seeks to dislodge. The appellant is, therefore, asked to convince the Appellate Court that the Trial Court is wrong. It is this particular feature of the exercise of appellate jurisdiction that makes it different from a trial. For the same reason, an appeal remanded to the First Appellate Court by the High Court, would involve a necessarily modified application of the provisions of Rules 23 and 23-A of Order XLI, CPC. It is on this account that Rule 1 of Order XLII, CPC makes allowance for a modified application of the various Rules of Order XLI, CPC in case of appeals from appellate decrees, that include Rules 23 and 23-A.
45. The procedure applicable to the hearing of appeals is to be borne in mind before the implications of an order of remand by the High Court to the First Appellate Court are worked out. It is the concern of this Court to determine whether the Appellate Court is bound to decide a point, that it has been particularly directed to decide by the High Court, together with a general order of remand made in second appeal, where the appellant does not at all address the Appellate Court on the point directed to be decided. This is precisely what the substantial question of law under consideration is about. The obligation of an Appellate Court to decide the appeal on merits where the appellant appears at the hearing but does not address the Court, were the subject matter of decision of the Supreme Court in Thakur Sukhpal Singh v. Thakur Kalyan Singh and another, AIR 1963 SC 146. The question was considered generally with regard to the obligations of the Appellate Court to decide on merits, where the appellant appears but does not address it. The question of the Appellate Court's obligations to decide a particular point directed by an order of remand of a superior Appellate Court, was not the subject matter of the decision of their Lordships in Thakur Sukhpal Singh (supra). Nevertheless, the decision in Thakur Sukhpal Singh (supra) is a beacon light authority about the manner in which the Appellate Court is to act when the appellant appears but does not address the Court, vis-a-vis the Court's obligation still to decide on merits. In the context of the aforesaid question that emerged on facts about which there is a very short statement in paragraph 2 of the report in Thakur Sukhpal Singh (supra), it was held thus:
"3. The contention raised for the appellant is that the High Court had no jurisdiction to decide the appeal fixed for final hearing without considering the proceedings of the Trial Court and the memorandum of appeal before it and that the right of the appellant to have the case decided on merits on the material before the Court was not dependent on his addressing the Court, Reliance is placed on the provisions of Order XLI. Rules 30,31 and 32, C. P. C. We do not agree with this contention.
4. Order XLI. R. 16 of the Code provides the procedure to be followed by the appellate Court on the hearing of an appeal which has not been dismissed under sub-r. (1) of R. 11 of that Order. Rule 16 reads:
"(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply."
It is clear from sub-r. (1), that it is the duty of the Appellate Court to hear the appellant in support of the appeal. This, however, does not mean that the appellate Court cannot decide the appeal if the appellant does not make his submissions to the Court showing that the judgment and decree under appeal were wrong. The appellate Court is not to force the appellant-to address it. It can, at best, afford him an opportunity to address it. If the appellant does not avail of that opportunity the appellate Court can decide the appeal. Sub-rule (2), indicates that the appeal can be dismissed without hearing the respondent. The appellate Court will do so if it was not satisfied that the judgment under appeal was wrong.
5. Learned counsel for the appellant does not dispute these propositions. His contention, however, is that even if the appellant does not address the Court, the Court must go through the record and the Judgment under appeal and come to its own conclusion about the correctness of the decision under appeal. Support for this contention is sought from the provisions of R. 31 of O. XLI which reads:
"'The judgment of the Appellate Court shall be in writing and shall state -
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
It is urged that the judgment of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. These matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. If no such points are raised for consideration the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determination, there can possibly be no decision thereon and no reasons for such decision. Such is the position when the appellant does not address the Court and does not submit anything against the decision of the Court below.The memorandum of appeal does contain the grounds of objection to the decree appealed from, without any argument or narrative as laid down in sub-r. (2) of R. 1, O. XLI. Such grounds cannot take the place of the points for determination contemplated by R. 31. Not unoften certain grounds of objection raised in the memorandum of appeal are not argued or pressed at the hearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgement at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out what the points for determination can be and then proceed to give a decision on those points.
6. The Privy Council observed in Mt. Fakrunisa v. Moulvi Izarus, AIR 1921 PC 55, at p. 56:
"In every appeal it is incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lordships are unable to find that this duty has been discharged."
With respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in R. 31, O. XLI.
7. This Court observed in Sengram Singh v. Election Tribunal, Kotah, 1755-2 SCR 1: (S) AIR 1955 SC (425) at p. 8 (of SCR): (at p. 429 of AIR) "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: --------Too technical construction of section that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."
The provisions of R. 31 should therefore be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant has actually raised certain points for determination by the appellate Court, and not when no such points have been raised as had been the case in the present instance when the appellant did not address the court at all.
8. The provisions of R. 30 of O. XLI support our construction of R. 31. This rule reads:
"The appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders."
It is to be noticed that this rule does not make it incumbent on the appellate Court to refer to any part of these proceedings in the court from whose decree the appeal is preferred. The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceedings of the Courts below and, in doing so, it can simply say that the appellants have not urged any-thing which would tend to show that the judgment and decree under appeal were wrong."
What their Lordships have held in Thakur Sukhpal Singh (supra) summarizes the salutary principles governing exercise of jurisdiction by the Appellate Court, in relation to an appeal where the appellant appears but does not address the Court. There is nothing in the scheme of Order XLI Rules 23, 23-A, Order XLII Rule1 read with Order XLI Rules 16, 30 and 31, CPC, that may make it incumbent upon the Appellate Court to decide a point, that it is particularly directed to decide by an order of remand made in second appeal, where the appellant does not canvass that point. It is the obligation of the appellant generally always to establish his case before the Appellate Court. It is, particularly, also the obligation of the appellant to establish his case with reference to a point, remanded by a higher Appellate Court to the Appellate Court for decision.
46. The order of remand that directs the Appellate Court to decide a particular point, with or without guidance about the law and the manner of its application does no more than formulate a point that the Appellate Court would be obliged to decide, if the appellant were to address the Court on it. The point would be raised for decision on the appellant pressing it before the Appellate Court. The order of remand is, thus, an opportunity to the appellant and also the respondent to address the Court about the point directed to be decided by the order of remand. The entire scheme of the relevant Rules of Order XLI do not envisage the Appellate Court bound to decide a point which the judgment of remand requires it to do, where the appellant does not address the Court on that point. It might be a different case where the point remanded for decision by the Court of second appeal is one that is formulated at the instance of the respondent to the appeal before the Court of first appeal, or in any case, the point is one that enures to the respondent's benefit before the First Appellate Court. This aspect is not being dealt with in this appeal, as it does not arise on the facts here.
47. In this appeal, the defendant is the appellant before the Lower Appellate Court. Being unsuccessful in the first instance before the Lower Appellate Court, he carried a second appeal to this Court and secured a remand with a direction to decide the point regarding his plea relating to rectification of the contract, subject matter of action. The plea was to be decided bearing in mind the provisions of Section 26 of the Specific Relief Act and Section 92 of the Indian Evidence Act. Besides, this direction, the appeal was to be heard as a whole, a matter already noticed hereinbefore. At the hearing, the defendant who secured the order of remand in the earlier second appeal did not address the Court on the point that the Lower Appellate Court was ordered to decide. Rather, he appears to have addressed the Court on other points, all of which were decided against him. There is no law that makes it incumbent upon the Lower Appellate Court to decide the point relating to rectification, in terms of the order of remand, which the appellant did not urge. Accordingly, substantial question of law no.(1) (the one formulated vide order dated 03.02.2020) is answered in the negative.
48. Substantial question of law no.(2) (the one framed on 03.02.2020) and the substantial question of law framed on 13.03.2019 are based on the defendant's plea about rectification of the contract, subject matter of action. This plea was made open to be canvassed as a point for determination by the judgment and order of remand passed by this Court in Second Appeal no.1732 of 1977, decided on 26.03.1993. The point was not at all addressed at the hearing of the appeal before the Lower Appellate Court by the defendant, who was the appellant there. It is, therefore, not open to the defendant to ask this Court to decide these two substantial questions of law, based on a point that he did not at all canvass at the hearing of the appeal before the Lower Appellate Court. Indeed, it is a case of an opportunity lost. This Court, therefore, refrains from answering the two substantial questions of law under reference.
49. The result would be that there is no good ground to interfere with the judgment and decree impugned.
50. The appeal fails and is hereby dismissed. The plaintiff would be entitled to his costs in this Court and the two Courts below.
51. Let a decree be drawn up, accordingly.
Order Date :- 19.06.2020 Anoop