Madhya Pradesh High Court
Murari Lal vs Ram Kumar Ojha on 20 August, 2014
1 Miscellaneous Appeal No.788/2010 AFR
(Murari Lal Vs. Ram Kumar Ojha and another)
20/08/2014
Shri N.K. Gupta, Senior Advocate assisted by Shri
Ravi Gupta, Advocate for appellant.
Shri D.D. Bansal, Advocate for respondent No.1.
This appeal by defendant under Order XLIII Rule 1
(u) of CPC is directed against the order dated 20/4/2010
in Civil First Appeal No.5A/2009. By the aforesaid order,
the appeal of plaintiff has been allowed and the case has
been remanded back to the trial court for decision afresh
on merits.
The moot question involved in this appeal is as
regards object and scope of power of appellate court
under Order XLI Rule 23A of CPC.
The Hon'ble Supreme Court in the case of
Municipal Corporation, Hyderabad vs. Sunder Singh,
(2008) 8 SCC 485 has lucidly and succinctly explained
the scope and application of the aforesaid provision, as
contained under Order XLI Rule 23 of CPC with
reference to nature of jurisdiction of the appellate court.
Relevant para 18 of the judgment is reproduced below:-
"18. It is now well settled that before invoking
the said provision, the conditions precedent
laid down therein must be satisfied. It is
2 Miscellaneous Appeal No.788/2010 AFR
(Murari Lal Vs. Ram Kumar Ojha and another)
further well settled that the court should loathe
to exercise its power in terms of Order 41
Rule 23 of the Code of Civil Procedure and an
order of remand should not be passed
routinely. It is not to be exercised by the
appellate court only because it finds it difficult
to deal with the entire matter. If it does not
agree with the decision of the trial court, it has
to come with a proper finding of its own. The
appellate court cannot shirk its duties."
Order XLI Rule 23A of CPC in the statute
w.e.f.1/2/1977 provides for application of Order XLI Rule
23 of CPC in the matters where the court from whose
decree an appeal is preferred has disposed of the case
otherwise than on preliminary point, and the decree is
reversed in appeal and re-trial is considered necessary,
the appellate court shall have the same powers as it has
under Order XLI Rule 23 of CPC. As such, the twin
requirements of the provision are to the effect that; (i) the
trial court disposed of the case otherwise than on a
preliminary point, and (ii) the decree is reversed in
appeal and re-trial is considered necessary. In other
words, if the appellate court finds a judgment under
3 Miscellaneous Appeal No.788/2010 AFR
(Murari Lal Vs. Ram Kumar Ojha and another)
appeal to be not satisfactory in the manner required by
Order XXII Rule 3 CPC or Order XLI Rule 21 CPC and,
hence, it is not a judgment in the eyes of law, it may set
aside the same and send the matter back for rewriting of
the judgment so as to protect valuable rights of the
parties. However, the appellate court should be
circumspect in ordering remand and it should not be
exercised when the case is not covered either by Rule 23
or 23A of Order XLI of CPC as an unwarranted order of
remand unnecessary prolongs the litigation, which in all
fairness should be avoided. (2002) 2 SCC 686, P.
Purushottam Reddy and another vs. Pratap Steels
Ltd. is referred to. Though the provision confers
discretionary jurisdiction on the appellate court, but order
of remand should not be passed routinely.
Facts necessary for disposal of this appeal are to
the effect that the plaintiff's suit for declaration, permanent injunction and recovery of possession has been dismissed. Subject matter of the suit relates to agricultural land falling in survey nos.869 and 870 situated at village Kalamadh, Tahsil Pohari, District Shivpuri. According to plaintiff, survey no.870 is the part of old survey no.681/2 admeasuring 0.31 hectare. 1/6th 4 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) whereof was purchased by defendant from one Ramkishan S/o Motilal vide registered sale deed dated 26/6/1986, however, as the Patta in favour of Ramkishan was cancelled, therefore, the sale deed became null and void. However, defendant no.1 by exercise of his influence over the revenue authorities has managed mutation of his name in respect of the aforesaid land. That was the subject matter of litigation and ultimately by the orders of the Board of Revenue the order of recording defendant no.1's name in respect of the land falling in survey no.870 was maintained. However, the Tahsildar deliberately has made the land of plaintiff's ownership and possession falling in survey no.869 subject matter of dispute while recording the name of defendant no.1 in respect of the said land also behind the back of the plaintiff without any notice. Plaintiff apprehending forcible dispossession by defendant no.1 with the aid and help of his brother working in the Police Department filed the aforesaid suit.
Defendant no.1 filed written statement and denied plaint allegations. According to defendant no.1, land falling in survey nos.869 and 870 are the part of old survey no.681/2 admeasuring 0.31 hectare out of which 5 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) 1/6th part was sold to defendant no.1 by one Ramkishan S/o Motilal vide registered sale deed dated 26/6/1986 and the land was accordingly mutated in his name. Rest of the land of the same survey number was also agreed to be sold to defendant no.1 by Ramkishan by an agreement dated 27/11/1987. As such, defendant no.1 claims to be the Bhoomiswami of the entire area viz.0.31 hectare of old survey no.681/2 and in possession thereof. It is further alleged that the defendant has raised construction over the area of 125 X 45 ft. Water Tank has also been constructed. Rest of the area is covered by wire fencing and boundary wall. Dispute was sought to be raised as regards the aforesaid land, however, the order passed by Tahsildar dated 6/2/1989 was kept intact. Plaintiff has no right, title and interest in respect of the suit land. No demarcation was done on 23/1/1997 on survey No.869, as alleged by the plaintiff. Plaintiff has in connivance and collusion with the revenue authorities got some forged proceedings in respect of the aforesaid suit land in furtherance of preparation of revenue documents in his favour. With the aforesaid pleadings, the defendant sought dismissal of the suit. Besides, other objections were also raised.
6 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) The trial court framed the issues on the pleadings of the parties and upon critical evaluation of evidence on record, dismissed the suit. The first appellate court posed two questions; whether the trial court was justified having not held plaintiff as Bhoomiswami of the suit land and that the defendant no.1 has taken possession of the suit land after filing of the suit; and whether the trial court committed error in appreciation of evidence for recording such findings. Before addressing upon the aforesaid questions, the first appellate court considered the applications filed by the plaintiff under Order XLI Rule 27 of CPC on 911/2009 and 20/11/2009. By the former application, plaintiff sought leave of the court to bring on record copies of Khasra of survey nos.869 and 870 which in fact were already on record and also a copy of the judgment. By latter application, the plaintiff sought to bring on record certified copy of the Dayra Panji of the Patta in respect of the suit land i.e. survey no.869. In para 9, the first appellate court has found that the trial court has taken on record the aforesaid documents vide I.A. No.23. The trial court by order dated 13/8/2009 found the documents to be admissible in evidence and accordingly taken on record. But, the order does not 7 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) indicate as to whether application was allowed or not. The first appellate court has further made an observation that the real dispute between the parties is as to whether the defendant was entitled for recording of his name in respect of land falling in survey no.870 or/and defendant no.1 has rightly got his name recorded in respect of survey no.869 also, which is claimed to be of the ownership and possession of plaintiff. In that context the order of the SDO dated 8/7/2009 filed by the plaintiff, but disputed and denied by the defendant, did not receive proper consideration by the trial court. According to him, error has been committed by the trial court in that behalf. The first appellate court in the aforesaid facts and circumstances expressed its opinion that IA No.23 was not properly disposed of by the trial court vide order dated 13/8/2009 and, hence, the order was held to be bad in law. In para 11 the first appellate court found that the certified copy of Diara Panji produced by the defendant/appellant of case No.130/84-85 A-19 though not filed before the trial court, but was relevant for decision of the suit. In para 13 the first appellate court expressly observed that it has not addressed on merits of the appeal and remanded the suit to the trial court for 8 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) decision afresh on merits.
Learned counsel for the appellant referred to para 11 and 12 of the judgment and decree passed by the trial court wherein the trial court has considered the revenue records in relation of the suit land particularly the order dated 8/7/2009 passed by the SDO in case No.97/08-09/ B-121 (Ramkumar Vs. Murarilal) which has been passed by the SDO with reference to the order passed by the Civil Court in Civil Suit No.6A/1997 dated 1/1/1998, wherein it is found that the defendant had no concern with survey No.869 and directed that defendant was entitled only with reference to survey no.870. Thereafter, the trial court has also discussed the orders passed by the various revenue authorities including the Board of Revenue in the aforesaid context and on merits has recorded the findings with reference to survey nos.869 and 870 qua plaintiff and defendant and likewise in para 12 the trial court has again discussed the documentary evidence related to revenue records and revenue cases in the aforesaid context. It is submitted that in view of the aforesaid, it is clear that the trial court has dealt with the SDO's order dated 8/7/2009 on merits and delivered the judgment. As such, the first appellate court has 9 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) committed grave error of law having made observation contrary thereto. The first appellate court under such circumstances ought not to have remanded the matter, instead ought to have addressed upon merits of the appeal for decision. It is submitted that while exercising powers under Order XLI Rule 23A of CPC the first appellate court was obliged to apply its mind to the factual matrix of the case and if it was found justified while analyzing the findings recorded by the trial court, it ought to have reversed the findings and after recording its satisfaction that re-trial was necessary, the power of remand under Order XLI Rule 23 CPC could have been exercised. That was not done. The observation of the first appellate court that the trial court should take on record the evidence with reference to the SDO's order (supra) dated 8/7/2009 and then decide the suit on merits is also palpably erroneous on facts as in fact the trial court has taken into consideration the aforesaid documents as referred above and, therefore, there was no justification for remand in the context of documents, which have already been considered and findings recorded by the trial court in that behalf. It is submitted that even otherwise, if the appellate court was of the view 10 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) that any further additional evidence was required to be considered, the first appellate court was fully competent to take such evidence on record, if any, under order XLI Rule 28 CPC and thereafter, decide the appeal on merits doing complete justice between the parties. That was also not done.
Learned counsel for respondent supported the impugned order and prayed for dismissal of appeal.
Heard counsel for the parties.
The scope and nature of jurisdiction conferred on appellate Court under Order XLI Rule 23 and Order XLI Rule 23A CPC are well settled as observed in the opening part of the order. The ingredients of Order XLI Rule 23A CPC are two fold, firstly; the appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfillment of these two requirements, the provisions of Order XLI Rule 23 CPC can be applied in the matter of remand of the case.
In the instant case, as a matter of fact, the 11 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) impugned judgment and decree suffers from perversity of approach, as despite the fact that the trial Court has considered the order passed by the Sub Divisional Officer dated 8/7/2009 passed in compliance of the order passed in civil suit No.6A/1997 alongwith other documentary evidence relating to revenue record to reach the conclusion that the appellants/defendants were not entitled to seek mutation over the suit land falling in survey No.869 of plaintiff's ownership and possession, the first appellate Court has observed that trial court has not properly considered and decided IA No.23. Consequently, has not considered aforesaid documents. As a matter of fact, after consideration of the evidence on record first appellate court ought to have reached the conclusion for reversing the findings so recorded by the trial Court and thereafter, should have applied the mind as to whether the re-trial was necessary.
Admittedly, the first appellate Court has not dealt with the appeal on merits and made an observation that the aforesaid evidence was not dealt with by the trial Court while recording the aforesaid findings and that is the reason why the impugned judgment and decree suffers from perversity of approach.
12 Miscellaneous Appeal No.788/2010 AFR (Murari Lal Vs. Ram Kumar Ojha and another) In the opinion of this Court the first appellate Court has in fact erroneously exercised the jurisdiction under Order XLI Rule 23 CPC while ordering remand of the case to the trial Court for fresh decision instead of deciding it on merits. Hence, the impugned judgment and decree is not sustainable in the eye of law and therefore, liable to be set aside.
It is directed that the first appellate Court shall decide the appeal on merits after affording due opportunity to both the parties, expeditiously.
The appeal stands allowed with the aforesaid. No order as to cost.
(Rohit Arya) Judge Arun*