Asish Debnath & Anr vs Smti Ginia Devi Dhelia on 30 September, 2015

[Cites 24, Cited by 1]

Gauhati High Court

Asish Debnath & Anr vs Smti Ginia Devi Dhelia on 30 September, 2015

Bench: P. K. Saikia

                                                                               1




                    IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                          Review Petition No. 37/2015
                                                     In SAO No. 6/2010


           1. Asish Debnath
              Son of Makhan Ch. Debnath,
              Hindu by religion and by profession
              Business carrying on his business as
              Sole proprietor of Public Tailoring
              House in the premises described
              Below and tenant under the plaintiff
              At B.N.P. Path (Kamakhya Road)
              New Market, Dibrugqarh Town,
              Dibrugarh, District- Dibrugarh,
              Assam.

           2. Public Tailoring House
              A sole proprietorship concern
              Of the defendant No. 1 above named
              at B.N.P. Path (Kamakhya Road)
              New Market, Dibrugarh Town
              District- Dibrugarh, Assam.
                                                     ......Review Petitioner



                 Versus


           Smti. Ginia Devi Dhelia
           Wife of Gangadhar Dhelia, Hindu by religion
           And owner by profession resident of
           B N P Path (Kamakhya Road)
           New Market, Dibrugarh Town,
           District Dibrugarh, Assam, represented
           by son Shri Mahabir Prasad Dhelia,
           Son of Gangadhar Dhelia, New Market,
           Dibrugarh.
                                                           ....Respondent

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 2

BEFORE HON'BLE MR. JUSTICE P. K. SAIKIA For the Review Petitioners : Mr. B. Banerjee, Senior counsel : Ms. M. Deb, advocate For the Respondent : Mr. G. N. Sahewalla, Sr. Counsel : Mr. P. Deka, advocate Date of hearing : 21.07.2015 Date of judgment : 30.09.2015 JUDGMENT AND ORDER (CAV) This review application is directed against the judgment dated 24.02.2015 rendered by this court in SAO No. 6/2010. By the said order this court has set aside and quashed the judgment and decree dated 30.11.2009 rendered by the learned Civil Judge, Dibrugarh in T.A No. 13 of 2005 under which the judgment and decree dated 04.03.2005 passed by the learned Munsiff No. 1, Dibrugarh in T. S. No. 19 of 1995 was set aside remanding the case to the trial court for fresh decision on the question whether or not the defendant therein was a defaulter in payment of rent.

2. I have heard Mr. B. Banerjee, learned senior counsel assisted by Ms. M. Deb, learned counsel for the review petitioners and also heard Mr. G. N Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel for the respondent.

3. It may be stated that predecessors in interest of the petitioner herein and after him, the petitioner herein, occupied the premises in question on rental basis under one Ginia Devi Dhelia who was the plaintiff in T. S. No. 19 of 1995 and O.P herein. Some disputes arose regarding payment of rent between the parties for which O.P., herein as plaintiff had filed the T.S. No. 19/1995 seeking eviction of defendants therein on the ground of his being a defaulter and also on the ground of bonafide requirement of the said premises.

4. Both the defendants denied the allegations and contested the suit having filed Written Statement and on conclusion of trial, the trial Court decreed the suit on holding that the defendants were defaulter and also on holding that plaintiff therein required the house on bona-fide ground vide judgment and decree dated 04.03.2005 in T.S. No. 19/1995. The said decision was questioned in appeal which was registered as T. A. No. 13/2005.

5. Learned Appellate court on hearing the learned counsel for both the parties found that the issue whether or not the appellant/defendant is a defaulter has not been properly inquired into by the learned trial court since, according to learned appellate court, some vital documents having huge bearing on the question whether or not the defendants were defaulter were not brought on record despite defendant had done everything to bring those documents on record. Therefore, the Appellate Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 3 court vide judgment/ decree dated 30.11.2009 set aside the judgment of the trial court and remanded the case to the trial court for fresh decision on the aforesaid question.

6. It may be stated that while remanding the case, the Appellate Court did not render any decision on the question whether or not the suit house is required by the plaintiff on bona-fide ground.

7. Being aggrieved, land lord had preferred an Appeal against the order of remand alleging that the order rendered by the First Appellate Court is not sustainable in law since it was not rendered in accordance with the prescription of law. Nor was it rendered on materials available on record. On the other hand, the respondent/defendant contended that there was no infirmity, whatsoever in the judgment remanding the case back to the learned trial court for fresh decision on the question whether or not the respondent had defaulted in payment of rent in respect of the suit premises.

8. This Court on hearing both the parties had found reason to conclude that there is enough materials on record to hold that respondent/tenant had defaulted in payment of rent in respect of suit premises which alone entitled the plaintiff/landlord to get a decree for eviction of tenant/defendant from the suit premises. Being so, the finding of the appellate court that the question "whether or not the defendant defaulted in making payment of rent in respect of the suit premises was not properly inquired into by the trial court" is found to be unsustainable.

9. On perusal of the judgment of the learned trial court, this court further found that the trial court found that plaintiff/landlord required the house in question on bona-fide ground as well for which the suit was decreed on such ground as well. This court, however, found that the learned Appellate court had rendered no decision whatsoever on the question of bonafide requirement of the suit house and therefore, the judgment of the appellate Court, remanding the case to the trial court, was set aside the judgment of the appellate Court restoring the judgment of the learned trail court vide judgment dated 24.02.2015 rendered in SAO No. 6/2010.

10. The tenant/defendant as applicant herein has, now, approached this court once again stating that the judgment rendered by this court in SAO No. 6/2010 is liable to be quashed on grounds more than one.

11. Firstly, it has been stated that the Assam Urban Areas Rent Control Act, 1972 (in short, the Act of 1972) is a special Act controlling the relationship between the landlord and tenant as well as rights of duties of them as being tenant and landlord. Such a special legislation prevails over the general legislation in so far matters, covered by it are concerned. Referring to section 8 of the Act, it has been stated that said Act makes the decision of the first appellate court in a suit instituted u/s 4, 5 and 7(2) of the Act final. Being so, the land lord could not have preferred any appeal against judgment/ decree dated 30.11.2005 in T A No. 13 of 2005.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 4

12. In that connection our attention has be drawn to Section 8 of the Act of 1972. For ready reference Section 8 of the Act is reproduced below: ---

"Section 8- Appeals. A landlord or a tenant aggrieved by any decision or order of the Court under the provisions of Sections 4,5 and 7(2) of this Act shall have a right of appeal against the same as if such decision or order were a decree in a suit for ejectment of the tenant from the house and such appellate Court's decision shall be final."

13. In support of such contention, the decision in Ranjit Kr. Dey and Ors. Vs. Krishna Gopal Agarwala and Ors., reported in 2004 2 GLT 432 has been relied on.

14. Referring to the decision of Dhanani Shoes Ltd. and Ors. vs. State of Assam and Ors., reported in 2008 3 GLT 361 it has been stated that the power of review is wide enough to cover the error which is highlighted in the present appeal. The relevant part is reproduced below:--

"37:-- the law, on the subject of review, can, in the light of the discussion held, as a whole, may be summarized thus: Ordinarily, a Court or a Tribunal cannot be review its order or decision if the statute does not confer on the Court or the Tribunal, as the case may be, the power to review its own order. This apart, whatever limitations are imposed by a statute, while conferring the power of review on a Court or a Tribunal, the Court or the Tribunal, as the case may be, must adhere to the limitations, which the relevant statute may impose on the exercise of such power. Section 114 CPC, which embodies the substantive power of view of a civil Court does not impose any limitations on the Court's power to review its order or decision; yet the power of review even by a Civil Court cannot be unguided and uncanalised, for Order 47 Rule 1 circumscribes the Court's power of review. Though, at one point of time, it was considered to be a rule of universal application that review by a Court of its order is not possible except on two prescribed grounds, namely (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time, when the decree or order was passed and (ii) mistake or error apparent on the fact of the record or any such sufficient ground, which is analogous to the tow grounds aforementioned, the subsequent development of law, on the subject of review, has shown that this rule is no longer a rule of universal application. One of the cases, which has helped expansion of the Court's power to review its order is the case of Lily Thomas (supra) inasmuch as Lily Thomas (supra) ruled that ordinarily, the power of review, being a creature or statute, cannot be exercised as an inherent power, yet such technicalities of law may have to be bent, in an appropriate case, for the purpose of correcting an order committed by the Court if such an error arises out of a presumption of fact, which was non-existent, and when the Court finds that its refusal to review its own error would cause, or has caused, grave miscarriage of justice. It is essentially the principle behind the doctrine of 'actus curiae neminem gravabit', which has made the Court hold, in Municipal Board, Pratapgarh (supra) that when a Court corrects and rectified an error, what it restores is the rule of law have to review its order by invoking the doctrine of 'actus curiae neminem gravabit'. It is in the backdrop of these developments of law the Board of Control for Cricket in India (supra) has laid down various circumstances in which the power of review can be exercised by the High Court as a Court of plenary jurisdiction. In the light of the decision, in Board of Control for Cricket in India (supra), an application for review would be maintainable if 'sufficient reason', exist thereof. What, in a given case, Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 5 shall constitute 'sufficient reason' would be a question of fact and would, therefore, depend on the facts and circumstances of a given case. the words 'sufficient reason', which appear in Order 47 Rule 1, are wide enough to include misconception of fact or law by a court and that event when a mistake of fact or law has crept into a judicial decision due to Court's misunderstanding of the nature of an undertaking given by an advocate, an application for review may be necessary and by invoking the doctrine of 'actus curiae nemimen gravabit', the court can, indeed correct such an error. Hence, when, as a result of misunderstanding of fact or law by a court, a mistake has crept in a decision and the court finds that the error is apparent of the fact of the record and/or that the error has caused miscarriage of justice or would cause, unless corrected, miscarriage of justice, such an error can and mush, be corrected by exercising the power of review and, for this purpose, the doctrine of 'actus curiae neminem gravabit' can also be invoked. A mistake, on the part of the Court, would include, according to the decision in Board of Control for Cricket in India(supra), a mistake in the nature of the understanding, which may have been given by a counsel meaning thereby that when a counsel, on a mistake belief or on an erroneous or incorrect instruction, makes a statement and the court acts on such a statement, but, on a review application having been subsequently filed, the court finds that it had misunderstood the counsel's submission or had got mislead by a counsel's submission or when the court finds that it (court) had proceeded on a assumption of fact, which did not really exist, or when it (court) finds that it had misinterpreted a provision of law or had acted on a misconception of law and that the error, so crept in, was, as a result of subsequent event or otherwise, apparent on the fact of the record, and that such error had caused, or would cause, miscarriage of justice, such a reason would be a 'sufficient reason' calling for exercise of the power of review."

15. Such a contention was opposed by Mr. Sahewalla, learned senior counsel contending that nobody disputes the proposition of law that a special law will prevail over the general law. Being so, there cannot be any dispute that in so far the matter covered by Special law are concerned the general law will have no application.

16. A perusal of section 8 of the Act of 1972 reveals that an appeal can be preferred not only from the regular decree but also from the deemed decree as well and decision of appellate court on such appeal shall be final. But in order to attain finality as contemplated in section 8 of the Act, the decision of appellate court dealing with the decree/deemed decree in a suit instituted u/s 4, 5 and 7 (2) of the Act must be in the nature of final ones.

17. Anything short of that would not give the finality to the decision of appellate court in an appeal of aforesaid nature as contemplated in section 8 of the Act of 1972 more particularly, contemplated in the group of words "such appellate Court's decision shall be final". According to learned counsel for the opposite party a decision of the appellate court dealing with a decree rendered under the Rent Control Act remanding the case to the trial court cannot be treated as final.

18. However, the decision rendered by the First Appellate Court in Title Appeal No. 13/2005 is not final in nature since it remanded the case to the Trial Court for deciding afresh the question if the defendant in T. S. No. 19 of 1995 is a defaulter or not. Such a decision remanding the case to the Trial Court appears to have been Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 6 made on invoking the power of the Appellate Court so incorporated in Order XLI Rule 23(A) of the CPC.

19. Being so, such a decision of the 1st Appellate Court remanding the case to the Trial Court for fresh decision on the point aforesaid never comes within the purview of the group of words "-such appellate Court's decision shall be final" as employed in Section 8 of the Act of 1972 in order to prevent the party aggrieved by such decision from preferring an appeal to the higher forum seeking the correctness of such a decision.

20. It is also the case of Mr. Sahewalla that law makes the order of remand rendered by Appellate Court an appealable one as is evident from Order XLIII Rule 1 (u) of the CPC. Law further ordains that if an order of remand, which is made appealable under the law, is not appealed against, the party aggrieved cannot question the correctness of the same subsequently.

21. In that connection, Mr. Sahewalla draws our attention to the provision of law, so incorporated in section 105 of the CPC, more particularly, to section 105 (2) of the CPC.

22. According to Mr. Sahewalla, since the order remanding a case is not final in nature, therefore, right to prefer an appeal against the order of remand, rendered by appellate court by the party aggrieved by such decision has never been taken away by either section 8 of the Act or any other provisions incorporated in such an Act either expressly or by implication.

23. Since right to appeal against the order of remand is recognized under the law vide Order XLIII Rule 1 (u) of the CPC, since such a right seems to be an independent right, not subservient to any other enactment and since such a right has not at all been taken away or abridged by the legislature under the enactment in the form of section 8 of the Act, it cannot be said that section 8 of the Act comes in the way of the plaintiff's (respondent in T.A No. 13 of 2005 and opposite party herein) in preferring an appeal on invoking the right conferred on such party under Order XLIII Rule 1 (u) of the CPC.

24. The fact that law does not allow a party aggrieved a decision of remand to question the correctness of such a remand order subsequently if no appeal is preferred against such order of remand not only firmly demonstrates that section 8 of the Act no way interfere with the right of a party aggrieved by an order of remand to prefer an appeal against such remand order but it also demonstrates that section 8 of the Act and Order XLIII Rule (1) (u) of the CPC operate in two distinct and different fields .

25. According to him, even if one assumes for sake of argument for a moment that the appeal in question comes under the purview of Section 8 of the Act, even then, in appropriate case, this Court may treat an appeal before it as a revision petition in order to wipe out any decision rendered by lower judicial authority/tribunal resulting in miscarriage of justice.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 7

26. In support of his claim, learned counsel for the opposite parties relies on the decision of The Reliable Water Supply Service of India (P) Ltd., vs. The Uniono f India ad Ors., reported in AIR 1971 SC 2083 (Para 6) as well as the decision of this court in Himangsu Kumar Nath vs. On the Death of Monmohan Nath His Heirs Mihir Kanti Nath and Ors., reported in 1991 2 GLR 46.

27. Mr. Shahewalla, the learned counsel for the opposite party/landlord, submits that the judgment under challenge in SAO 6 of 2013 suffers from illegalities of enormous nature causing huge hardship to the landlord/opposite party. In that regard, it has been contended that suit was decreed by trail court on the ground of defendant being defaulter and also on the ground of bona-fide requirement.

28. Though the Appellate Court found that the issue relating to defaulter has not been properly considered by trial court yet, it made absolutely no discussion as to whether issue relating to requirement of the suit premise on bona-fide reason is found sustainable or not. Despite above, learned appellate court chose to set aside the entire judgment of the Trial Court which firmly demonstrates that the decision of the trial court is wholly perverse.

29. In that context, learned counsel for opposite party/plaintiff further submits that the landlord had proved his claim that the defendant/applicant is a defaulter in the suit premises by adducing indisputable evidence and as such, the decision of trial court could not have been set aside by the learned appellate court had later reads the evidence on record in proper perspective. This again shows that the decision of the appellate court is perverse.

30. Since perversity in judgment is one of the grounds, on which this court is entitled to invoke its revisional jurisdiction, on this count alone this court could have treated the aforesaid appeal to be a proceeding preferred u/s 115 CPC and could have set aside the aforesaid judgment by restoring judgment of the trial court.

31. I have considered the rival submissions and have found that there is no dispute over the fact that the Act of 1972 is a special legislation and it will prevail over the general law in so far matters covered by the special legislation are concerned. Being so, there cannot be any manner of doubt that the decision of appellate court in respect of a decree/deemed decree rendered in suit instituted under section 4, 5 and 7 (2) of the Act is final.

32. But then, it needs to be seen if an order of remand, made by the appellate court in respect of a decree/deemed decree rendered in suit instituted under section 4, 5 and 7 (2) of the Act is final so as to take such a decision within the purview of group of words "such appellate Court's decision shall be final" in order to prevent the party, aggrieved thereby, from making any further appeal.

33. Before I proceed further, I feel tempted to know what the term "final" means since learned counsel for the opposite party arduously contends that an order remanding a case by the appellate court, itself not being a final in form, is not entitled to come under the group of words "such appellate Court's decision shall be final" so employed in section 8 of the Act of 1972 preventing further appeal from the Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 8 decision of appellate court in an appeal from a decree or deemed decree passed by trial court in a suit instituted u/s 4,5 and 7(2) of the Act.

34. In a common parlance -- "final" means last, concluding, closing, ultimate and ending point of the matter beyond which there is no road for further movement.

The Chamber Dictionary defines "final" as follows:-

"Final : Adj.1. coming at the end of a series, reached as the outcome of a process, the final cost will run into six figures. 2 allowing no further doubt or dispute. N. 1. The last game in a sports tournament or other competition, which will decide the overall winner. (finals) a series of games constituting the final stage of a competition .2 (finals) Brit. A series of examinations at the end of a degree course. (final) N.Ameri. an examination at the end of a term, school year, or particular clsss 3. Music the principal note in a mode. Derivatives finality n (pt. finalities), finally adv."

The Oxford 21st Century Dictionary defines "final" as follows:-

"Adj. 1. Occurrening at the end, last in a series after all the others. 2 completed; 3 said of a decision, etc, definite, not to be altered, conclusive. Noun. 1 a the last part of a competition at which the winner is decided b. (final) the last round or group of contests resulting in a winner. Our team has made it to the finals 2. (finals) the examinations held at the end of a degree course, etc. 3 music a the keynote or tonic b the lowest note in the Authentic modes; e a fourth above it in the FLAGAL 4 the final edition of a newspaper. Have you bought the final yet ?, from Latin finals pertaining to an end from finished."

The Judicial Dictionary defines "final" as follows:-

FINAL. (1) where a statute provides that a specified determination shall be "final" e.g., the decision of a Poor Law Auditor as regards an untaxed solicitors bill (Poor Law Amendment Act 1844 (c. 101), s.39), it is not open to review even though the court does not see the reasonableness of the provision.

(2) " Any decision of a claim or question in accordance with this part of this Act shall be "final" (National Insurance (Industrial Injuries) Act 146 (c.62), s.

36(3); re-enacted National Insurance ( Industrial Injuries) Act 1965 (c. 52), s. 50(1) means without appeal. It does not mean without recourse to certiorari. It makes the decision final on the facts, but not final on the law. Application might properly be made to the High Court by originating summons for a declaration whether the National Insurance Commissioner came to the correct determination in law, notwithstanding that his determination was expressed to be "final".

(3) "Final" (National Insurance Act 1965 (c. 51), s. 75). It was held that the decision of the statutory authority is "final" under this section in a limited sense only. The medical authorities who are later called upon to determine disablement benefit cannot find that the insured suffered no injury at all, but they are entitled to find that he suffered a different injury by reason of the accident.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 9

(4) An arbitration award, of a foreign court may be final within the meaning of Arbitration Act 1950 (c. 27), s. 37 (1) (d), although it could not have been enforced in the foreign country without an order from the foreign court, before which objections to the form of the award could have been taken.

(5) A disposal by the Nigerian Federal Supreme Court of a matter referred to as an interlocutory reference by the High Court of Western Nigeria was "final" decision within the meaning of s. 114 of the Federal Constitution of Nigeria even though it was not a final decision in the proceedings before the High Cort.

(6) The provision in the Gaming Act 1968 (c. 65), Sched. 7, para 11(4) that the judgment of quarter sessions should be "final" did not exclude a right of appeal from quarter sessions on a point of law.

On the other hand , The Advance Law Lexicon defines "final" as follows:-

Final:-- In its ordinary significance, last; that which absolutely ends or concludes a matter (as, final decision) precluding further controversy on the question passed upon that which terminates or ends a matter or proceeding not absolutely, however sometimes it may mean conclusive.

As applied to a judgment or decree. It has a technical, fixed and appropriate meaning. It denotes the essential character, not the mere consequences, of the order, it is used in contradiction to "interlocutory". It is doubtful whether the word 'final' used in C.P. Code means 'non- applicable'. The term 'final' used in S. 45(5) of the U.P. Encumbered Estates Act only means "not subject to appeal". It cannot be final in the sense that the power of the High Court to interfere in revision is shut out.

The word "final" in S. 5 of the Court fees Act (7 of 1870), has the same meaning as in S. 12 although it is applied to a different subject. In both, it means simply "not applicable", a decision under S. 5 is not open to appeal revision or review and is final for all purpose.

The decision of Returning officer regarding acceptance or rejection of nomination papers is final, in the sense that it cannot be questioned until the election is completed.

The word 'final' means 'without appeal'. It does not means 'without recourse to certiorari'. Re Gilmore's Application.

The expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. The expression "final" may have a restrictive meaning in other contexts, but in Section 43 of the Act such a restrictive meaning cannot be given for Chapter VI of the Act provides for a hierarchy of Tribunals for deciding disputes arising there-under.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 10

35. Thus, it is found that the term "final" carries almost same meaning, both under the dictionary and in common parlance. In other words, a decision of the appellate Court on a real decree/deemed decree, passed by trial court in a suit instituted u/s 4,5 and 7(2) of the Act to be final, preventing further appeal etc there- from, must be one which decides the dispute between the parties conclusively and once for all.

36. It is in those backdrops, we needs to understand the nature of order of remand. The term "remand" has not been defined in the CPC. The Code of Criminal Procedure too used the term in various provisions incorporated therein including section 167 CrPC. However, CrPC too did not define the term "remand".

37. It may be noted here that in common parlance, the term "remand" means sending back something to the custody of original authority and such original authority is to do further needful as indicated in the order of remand. But then, we also need to know how such term is defined in the contemporary dictionaries.

38. According to Chambers 21st century dictionary "remand" is defined as follows:-

Remand; verb remanded, remanding 1. law to send (a person accused of a crime) back into custody to await trial, especially to allow more evidence to be collected. 2. Rare to send back. Noun 1 the act or process of sending an accused person back into custody to await trial. 2. The act of remanding or state of being remanded. On remand in custody or on bail warranting trial from latin remand are to send back word or to repeat a commond, from mandare to send word or to command.

39. The Oxford English dictionary defines the term "remand" in the following manner:---

Remand: Law. V.place (a defendant) on bail or in custody, especially when a trial is adjourned, n. a committal to custody.

Phrases on remand in custody pending trial. ORIGIN ME ( in the sense ' send back again) from late 1. Remandare, from re- 'back' + mandare 'commit'.

The Advance Law Lexicon defines the term "remand" in the following manner:---

Remand :-- After a preliminary or partial hearing before a Court or Magistrate, to send a prisoner back to the custody, to be kept until the hearing is resumed or the trial comes on; to remit or send back a cause to the Court from which it was removed, appealed, or transferred into another Court, in order that some further action may be taken upon it in the original Court.

The act of sending back (a prisoner) into custody, specially in order that further evidence on the charge may be obtained; the act of sending back a case or suit or an appeal to the lower Court or authority for re-hearing to [ S. 105(2), CPC (5 Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 11 of 1908) and s. 309 (2) Expln. CrPC 1973 (2 of 1974)] to send back.

To send back to a lower Court for further proceedings.

40. In order to appreciate the term "remand" we need to know why and what for aforesaid term has been employed in the Code of Civil Procedure. We have found that order XLI Rule 23 and 23 A states the purpose for which Code employed the word "remand". It may be noted here that appellate court has various powers and power of remand of the case is one of such powers.

41. For ready reference, Order XLI Rule 23 and Rule 23 A of the CPC are reproduced below: ----

"23. Remand of case by Appellate Court:- Where the court from whose degree 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 are re-trial is considered necessary, the Appellant Court shall have the same powers as it has under rule 23."

42. On considering the term "remand" in the light of definitions, so rendered in the contemporary dictionaries and also as understood in common parlance, keeping the provisions of Order XLI Rule 23 and Rule 23 A of the CPC in view, I have found that when a case is remanded to the trial court, it cannot be said that while remanding the case, the appellate court dealing with such an appeal rendered a decision, final in nature.

43. Quite contrary to it, when a case is remanded to the trial court, it needs to be concluded that the appellate court leaves the matter to the trial court for taking fresh decision on some point or points, more so, when, as in our instant case, a case is remanded to the trial court under Order XLI Rule 23 A for fresh decision after reversing the decree in challenge.

44. In that view of the matter, it needs to be concluded that when the appellate court remanded a case to the trial court under Order XLI Rule 23 A of the CPC, it cannot be said that the appellate court has decided the matter in dispute in such appeal finally so as to make the way for application of group of words "such appellate Court's decision shall be final" as employed in section 8 of the Act of 1972 preventing further appeal etc there-from.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 12

45. Being so, in my considered opinion, the order of remand by Appellate Court in Title Appeal No. 13/ 2005 on 30.11.2009 does not come under the mischief of group of words "such appellate Court's decision shall be final" as employed in 8 of the Act of 1972 and as such, an appeal is permissible against an order or remand made by appellate court in an appeal from a decree rendered in a suit instituted u/s 4,5 and 7(2) of the Act of 1972. Therefore, the contention of the applicant that this court had no jurisdiction to entertain SAO NO 6 of 2010 is found to be without any merit.

46. The above conclusion of mine finds support when we view the matter from a yet another angle. It is a settled law that all decrees are appealable unless appeal from such decree is barred either expressly or impliedly by the CPC or any other enactment. However, only those orders are appealable which are made so by law and not otherwise. It may be noticed that there are lists of orders which are appealable and lists of such Orders may be found in Section 104 and Order XLIII (1) of the CPC.

47. Since right to appeal from an order is the creation of law, therefore, such right can be taken away only by legislatures. Though section 8 of the Act of 1972 says that decision of appellate court in an appeal against the decree/deemed decree rendered by trial court in a suit instituted under section 4, 5 and 7(2) of the Act of 1972 is final, yet, such prohibition has no application to an order of remand, made under Order XLI Rule 23 and Rule 23 A of the CPC, same not being a decision, final in nature.

48. It is equally worth noting here that Law in the form of section 105, section 105(2) of the CPC in particular, further says that when an order of remand, which law makes appealable, is not appealed against by the aggrieved party, such aggrieved party cannot question the correctness of such an order subsequently. For ready reference same is reproduced below: - -----

"105. Other orders- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand [***] from which an appeal lies does not appeal there-from, he shall thereafter be precluded from disputing its correctness."

49. Therefore, if a person, who feels aggrieved by an order of remand rendered by the appellate court, does not prefer any appeal against such order of remand, in view of provisions incorporated in Section 105 (2) of the CPC, he would be prevented from questioning the correctness of the decision of appellate court remanding the case to the trial court subsequently. In other words, if a party aggrieved by an order of remand fails to prefer an appeal against the order of remand, the decision of the appellate court would be final.

50. We have already found that order of remand is made appealable under Order XLIII Rule 1 (u) of the CPC. As stated above, it is a special right, conferred on Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 13 a party aggrieved by the decision, made by higher court dealing with an appeal. On reading the provision of section 8 of the Act of 1972, one would find that the right, so conferred by Order XLIII Rule 1 (u) of the CPC has never been taken away by the legislature. The fact that order of remand is not a decision of final in nature makes such a conclusion inevitable.

51. However, according to learned counsel for the applicant/tenant, the party aggrieved by order of remand made by the appellate court against the decision rendered in ejectment suit cannot have any right to prefer an appeal against such order of remand in view of prohibition in Section 8 of Act of 1972. But then, such a proposition is found to be wholly unsustainable.

52. If one accept the argument, so advanced by learned counsel for the applicant that the order of remand in question is not appealable in view of prohibition in Section 8 of the Act of 1972, then the party aggrieved is to suffer the injustice arising out of an illegal order. But such a proposition of law is not at all in agreement with the arrangements of the things as has been done in the Code of Civil Procedure. Our foregoing discussion has made such position very clear and it needs no further reinstatement.

53. Even if one assumes for the sake of argument for a moment that this Court has no jurisdiction to entertain the appeal in question, yet, it may be noticed here that in appropriate case, this Court can invoke its revisional jurisdiction under section 115 of the CPC to correct any glaring wrong committed by any inferior judicial authority.

54. In that connection we can profitably peruse the decision rendered in Himangsu Kumar Nath vs. On the Death of Monmohan Nath His Heirs Mihir Kanti Nath and Ors., reported in 1991 2 GLR 46

55. For ready reference, same is reproduced below: ----

"Para 4:-- The learned counsel for the petitioner Mr. B. K. Acharyya, fairly concedes that in view of the aforesaid provision the petitioner should have filed an appeal and not revision petition. He, however, prays that the present revision petition may be treated as an appeal and may be decided accordingly, counsel submits that this court can do so in exercise of its inherent power under section 151 of the CPC. in support of the submission counsel relies on a decision of the Allahabad High Court in Bahori vs. Vidya Ram, AIR 1978 Allahbad 299 where it was observed that since there is no specific provision for the conversation ofan appeal into a reviewion or vice versa there can be no restriction on the conversation except that imposed under section 151 of the CPC. Reliance is also placed on a decision of the Bombay High Court in M/S Rupam Pictures vs. Dr. Brijmohan, AIR 1977 Bombay 425 where it was observed that in cases where appeal lies but a revision application is wrongly preferred, the court has wide discretion to treat it as an appeal if the conditions laid down by law are fully satisfied. Reference has also been made to a decision of Delhi High Court in Jiwun Dass Rawal vs. Narain Dass, AIR 1981 Delhi 291 where also it was held that the label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected by treating an appeal as a revision or a revision as an appeal, provided of course the cause of justice so demands. On consideration of the above decisions I find myself in Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 14 agreement with the same. In my opinion, under section 151 CPC the court has inherent power to treat a revision as an appeal or vice versa, if the conditions laid down by the law are satisfied. This power, however, is discretionary and should be exercised only if it is necessary to do so for the ends of justice. In the instant case, I finds that all necessary conditions laid down by law are satisfied. In that view of the matter I allow the present revision petition to be converted into an appeal. It will be heard as such."

"PARA---6:- Turning now to the second contention in our opinion the application under Section 5 of the Arbitration Act,1940 was a misconceived application. The controversy in this case is whether the dispute in question is covered by the terms of the agreement. In other words the dispute is as to the existence of an agreement to refer disputes of the type with which we are concerned in this case, to arbitration. That being so, the case fell within the scope of Section 33 of the Arbitration Act and not sec. 5. In view of the erroneous conclusion of the trial court that the Air Force is a legal entity different from the Union of Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (7)). The trial court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. It facts disclosed in the application did not confer jurisdiction upon it under Section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision."

56. Coming back to our case, it is found that the decision of the First Appellate Court was not only wrong but it was profoundly illegal. Being so , as held in Himangsu Kumar Nath (supra) , this Court can rectify the aforesaid illegality by setting aside such a wrong order treating such an appeal as revision and thereafter, on invoking its power under Rule 33 of the Order XLI of the CPC ( which is also available to a court of exercising revisional power), it can restore the order of trial court which is found to be correct and proper, more so, when the petitioner herein fully participated in such a proceeding without raising any protest, whatsoever, to such a proceeding.

57. In that view of the matter as well, in my very considered opinion, there is no merit in the present review petition by which the review petitioner has prayed for review of the judgment rendered in SAO No. 6 of 2010.

58. In the result, the Review Application is rejected. The parties are directed to bear their own cost.

JUDGE Rupam Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 15 From Black Law dictionary Final, adj. (14c) 1. (Of a judgment at law) not requiring any further judicial action by the court that rendered judgment to determine the matter litigated; concluded. 1. (Of an equitable decree) not requiring any further judicial action beyond supervising how the decree is carried out. Once an order, judgment, or decree is final, it may be appealed on the merits.

Remand vb. (15c). 1. To send (a case or claim) back to the court or tribunal from which it came for some further action the appellate court reversed the trial court's opinion and remanded the case for new trial. 2. To recommit (an accused person) to custody after a preliminary examination the magistrate, after denying bail, remanded the defendant to custody.

From Judicial Dictionary FINAL. (1) where a statute provides that a specified determination shall be "final" e.g., the decision of a Poor Law Auditor as regards an untaxed solicitors bill (Poor Law Amendment Act 1844 (c. 101), s.39), it is not open to review even though the court does not see the reasonableness of the provision.

(2) " Any decision of a claim or question in accordance with this part of this Act shall be "final" (National Insurance (Industrial Injuries) Act 146 (c.62), s. 36(3); re-enacted National Insurance ( Industrial Injuries) Act 1965 (c. 52), s. 50(1) means without appeal. It does not mean without recourse to certiorari. It makes the decision final on the facts, but not final on the law. Application might properly be made to the High Court by originating summons for a declaration whether the National Insurance Commissioner came to the correct determination in law, notwithstanding that his determination was expressed to be "final".

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 16

Advance Law Lexicon Remand :-- After a preliminary or partial hearing before a Court or Magistrate, to send a prisoner back to the custody, to be kept until the hearing is resumed or the trial comes on; to remit or send back a cause to the Court from which it was removed, appealed, or transferred into another Court, in order that some further action may be taken upon it in the original Court.

The act of sending back (a prisoner) into custody, specially in order that further evidence on the charge may be obtained; the act of sending back a case or suit or an appeal to the lower Court or authority for re-hearing to [ S. 105(2), CPC (5 of 1908) and s. 309 (2) Expln. CrPC 1973 (2 of 1974)] to send back.

To send back to a lower Court for further proceedings.

Advance Law Lexicon Final:-- In its ordinary significance, last; that which absolutely ends or concludes a matter (as, final decision) precluding further controversy on the question passed upon that which terminates or ends a matter or proceeding not absolutely, however sometimes it may mean conclusive.

As applied to a judgment or decree. It has a technical, fixed and appropriate meaning. It denotes the essential character, not the mere consequences, of the order, it is used in contradiction to "interlocutory". It is doubtful whether the word 'final' used in C.P. Code means 'non-applicable'. The term 'final' used in S. 45(5) of the U.P. Encumbered Estates Act only means "not subject to appeal". It cannot be final in the sense that the power of the High Court to interfere in revision is shut out.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010 17

The word "final" in S. 5 of the Court fees Act (7 of 1870), has the same meaning as in S. 12 although it is applied to a different subject. In both, it means simply "not applicable", a decision under S. 5 is not open to appeal revision or review and is final for all purpose.

The decision of Returning officer regarding acceptance or rejection of nomination papers is final, in the sense that it cannot be questioned until the election is completed.

The word 'final' means 'without appeal'. It does not means 'without recourse to certiorari'. Re Gilmore's Application.

The expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. The expression "final" may have a restrictive meaning in other contexts, but in Section 43 of the Act such a restrictive meaning cannot be given for Chapter VI of the Act provides for a hierarchy of Tribunals for deciding disputes arising there-under.

Rev. Pet. No. 37 of 2015 In SAO No. 6 of 2010

Unlock Advanced Research with PRISMAI

Gauhati High Court