Himachal Pradesh High Court
Yuvraj Mohan Azad vs Pratap Steels Ltd. 2002 (2) Scc on 23 April, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY OF APRIL, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
FIRST APPEAL FROM ORDER NO.269/2019
BETWEEN:
YUVRAJ MOHAN AZAD,
SON OF LATE SHRI JHURA RAM PRAKASH,
RESIDENT OF PANTA NIWAS, PANCHHI AHATA,
KHALINI, SHIMLA-171002 (HP) AT PRESENT
RESIDENT OF HARI PRABHA NIWAS,
BELOW SIRTAJ COMPLEX, KARYAN, MEHLI,
DISTRICT SHIMLA (HP)-171 013
....APPELLANT
(BY MR. NEERAJ GUPTA, SR. ADVOCATE
WITH MR. AJEET PAL SINGH JASWAL, ADVOCATE)
AND
SH. GOVERDHAN SINGH,
SON OF SHRI DEVI DASS,
RESIDENT OF VILLAGE SUNDLI,
P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP),
THROUGH HIS GENERAL POWER OF ATTORNEY
SHRI RAKESH DHAUTA, SON OF SHRI GOVERDHAN
SINGH, RESIDENT OF VILLAGE SUNDLI,
P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP).
...RESPONDENT
(MR. G.D. VERMA, SR. ADVOCATE
WITH MR. B. C. VERMA, ADVOCATE)
__________________________________________________________________
The appeal coming on for admission after notice this
day, the court passed the following:
ORDER
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2
Aggrieved by the impugned order dated 16.5.2019 rendered by the learned first appellate court, whereby it has ordered wholesale remand of the matter after setting aside the judgment and decree passed by the learned trial court, the .
plaintiff/appellant has filed the instant appeal.
2 The plaintiff filed a suit for possession and permanent prohibitory injunction against the defendant/respondent on the allegations that he is owner in possession of the land comprised in Khasra No. 415/3, measuring 3-01-56 hectares, situated in 3 r to Mohal Shiv Nagar, Tehsil and District Shimla and the defendant is owner of the adjoining land comprised in Khasra No. 415/2.
As regards building plan of the appellant, the same was approved by the Special Area Development Authority on 21.7.2005, whereas that of the respondent was approved later on 8.8.2006. It was alleged that in the month of February 2006, which was one day before the date fixed for demarcation, the defendant in absence of the plaintiff encroached upon the suit land by constructing the boundary wall and thereby covered the set-back area of the plaintiff mentioned at points A, B and C in the map. Hence, the suit.
4 The defendant contested the suit by filing written statement, wherein it was averred that the construction raised by him was as per sanctioned plan and it was denied that the set-
back of the plaintiff was encroached by him. On the other hand, ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 3 it was claimed that the plaintiff had raised the construction without leaving any set-back area. The boundary wall was raised in the month of August 2002 and not in the year 2006 as alleged by the plaintiff. It was further averred that the demarcation given .
by the Field Kanungo on 9.2.2006 was correct, but the plaintiff did not agree to the same. Besides, he also took preliminary objections regarding cause of action, estoppel, improper valuation, non-identification of the land, non-joinder of necessary parties and locus standi.
5The defendant also filed counter claim seeking to restrain the plaintiff from causing any damage to the building of the defendant, situated over Khasra No. 415/2. It was further averred that the plaintiff had started plastering work, white wash etc., which was damaging his building.
6 On the basis of the pleadings of the parties, the learned trial court on 12.11.2008 framed the following issues:
1) Whether the defendant has encroached upon the suit land, as alleged?..OPP.
2) If issue No.1 is proved in affirmative whether the plaintiff is entitled for the possession of the encroached portion of the suit land, as alleged? OPP.
3) Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP.
4) Whether the plaintiff has cause of action to file the present suit? OPD
5) Whether the suit is not maintainable ?OPD ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 4
6) Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds, etc, as alleged? OPD.
7) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPP.
8) Whether the suit is bad for non joinder of necessary .
parties? OPD.
9) Whether the defendant is entitled to the relief of Permanent Prohibitory Injunction as prayed for by way of counter claim?OPD
10) Whether the defendant has cause of action to file the counter claim?0PD.
11) Whether the counter claim is not maintainable ,as alleged?OPP
12) Relief.
7 After recording the evidence and evaluating the same, the suit filed by the plaintiff was decreed by the learned trial court, whereas counter claim of the defendant was dismissed.
8 It needs to be noticed that the findings of the learned trial court are based on the demarcation report, Ext. CW-1/B, which had been called for by the learned District Judge at an earlier occasion on 8.3.2013, whereby judgment and decree passed by the learned trial court on 29.2.2012 had been set aside by holding that the dispute between the parties could be settled by appointing a revenue expert.
9 Aggrieved by the judgment and decree passed by the learned trial court, the defendant filed an appeal before the learned first appellate court, who vide judgment dated 16.5.2019 ordered the wholesale remand of the case to the learned trial ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 5 court, as would be evident from para 33 of the order, which reads as under:-
"33. In view of the findings given above on point No.1, the appeal is allowed and impugned judgment and decree is .
ordered to be set aside. Consequently, the matter is remanded back to the learned trial court with a direction to appoint a local commissioner (revenue expert) to demarcate the land of the parties with latest revenue record and thereafter decide the same afresh. The parties are directed to appear before the learned trial court on 24.5.2019. The parties are left to bear their own costs. Memo of costs be prepared accordingly".
10 It is vehemently argued by Mr. Neeraj Gupta, learned Senior Advocate assisted by Mr. Ajeet Pal Singh Jaswal, Advocate, representing the plaintiff that the learned first appellate court could not have ordered wholesale remand and directed the learned trial court to appoint a local commissioner, especially when the report of the local commissioner has formed and become one of the basis of the judgment and decree of the learned court, which otherwise was not in any manner contrary to law.
11 On the other hand, Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B. C. Verma, Advocate, representing the defendant, would vehemently argue that the findings as recorded by the learned first appellate court need not be interfered with as the same have been rendered within the four corners of the law.
::: Downloaded on - 23/04/2022 20:07:47 :::CIS 612 I have heard the learned counsel for the parties and have also gone through the material placed on record.
13 As regards wholesale remand, legal preposition has been culled out by the Hon'ble Supreme Court in P.Purushottam .
Reddy and another Vs. Pratap Steels Ltd. 2002 (2) SCC 686, wherein it was held as under:
9. The next question to be examined is the legality and propriety of the order of remand made by the High Court.
Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 7 specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court .
itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 8 gives the litigation an undeserved lease of life and, therefore must be avoided.
14 The aforesaid exposition of law makes it abundantly clear that wholesale remand cannot be readily ordered by the .
higher court unless the facts and circumstances fully justify the same.
15 Adverting to the facts of the instant case, it would be noticed that the learned trial court has relied upon report of the local commissioner, after negating each of the objections raised by the defendant as is evident from paras 27 to 35 of the judgment. On the other hand, the learned first appellate court did not care to touch upon the findings rendered by the learned trial court and simply reversed the findings by carving out entirely a different case in favour of the defendant.
16 The Hon'ble Supreme Court has, in its various pronouncements, authoritatively laid down that an appellate court is the final court of fact ordinarily and, therefore, a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him.
17 In Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179, the Hon'ble Supreme Court held as under:
15........The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 9 valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the .
issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court......... while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.
18 The above view was followed by a three-Judge Bench decision of the Hon'ble Court in Madhukar & Ors. vs. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that while sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
19 In H.K.N. Swami vs. Irshad Basith, (2005) 10 SCC 243, the Hon'ble Supreme Court stated as under:
"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 10 and the evidence led by the parties before recording the finding regarding title."
20 Again, in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, the Hon'ble Court taking note of all .
the earlier judgments reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 11 appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) .
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
21 The aforementioned cases were relied upon by the Hon'ble Supreme Court while reiterating the same principle in State Bank of India & Anr. v. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta & Ors. (2016) 4 SCC 172.
22 As regards scope of Section 96, the Hon'ble Supreme Court in a fairly recent judgment in Malluru Mallappa vs. Kuruvathappa, (2020) 4 SCC 313 observed as under:
10. Section 96 of the CPC provides for filing of an appeal from the decree passed by any court exercising original ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 12 jurisdiction to the court authorized to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. The expression 'appeal' has not been defined in the CPC. Black's Law Dictionary (7th Edn.) defines an appeal .
as "a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority." It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors.
11. In Hari Shankar v. Rao Girdhari Lal Chowdhury 1 it was held that a right of appeal carries with it a right of re- hearing on law as well as on fact, unless the statute conferring a right of appeal limits the re-hearing in some way as has been done in second appeal arising under the CPC.
12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat2 it was held thus:
5. ........... In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may AIR 1963 SC 698 1969 (2) SCC 74 choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial......."
13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court.
::: Downloaded on - 23/04/2022 20:07:47 :::CIS 13Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first .
appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs., Madhukar and others v.
Sangram
r and Others, B. M. Narayana Gowda v.
Shanthamma (Dead) By Lrs. and Another, H. K. N. Swami v.
Irshad Basith (Dead) By Lrs. and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar)
14. A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.
15. Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For ready reference Order XLI Rule 31 of the CPC is as under: -
"31. Contents, date and signature of judgment.- 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;::: Downloaded on - 23/04/2022 20:07:47 :::CIS 14
and shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
16. In Vinod Kumar v. Gangadhar8 this Court has reiterated the principles to be borne in mind while disposing of a first appeal, as under:-
.
"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
17. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr., it was held as under:-
"21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal ::: Downloaded on - 23/04/2022 20:07:47 :::CIS 15 keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."
.
18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply (2015) 11 SCC 269 with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.
23 To the similar effect is another recent judgment of the Hon'ble Supreme Court in K. Karuppuraj vs. M. Ganesan (2021) 10 SCC 777.
24 Thus, what can be culled out from the aforesaid exposition of law is that the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.
::: Downloaded on - 23/04/2022 20:07:47 :::CIS 1625 What is absolutely imperative and important while reversing findings of fact is that the appellate court must come into close quarter with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.
.
This is imperative for the reason that this would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
26 As discussed above, the learned first appellate court has chosen to write a separate order to justify its decision for setting aside the report of the local commissioner without making a single reference to the reasons assigned by the learned trial court for upholding report of the local commissioner. In such circumstances, obviously the order passed by the learned first appellate court cannot sustain.
27 In view of aforesaid discussions, I find merit in the instant appeal and the same is accordingly allowed.
Consequently, the impugned order passed by the learned first appellate court is quashed and set aside and the matter is remanded back to the learned first appellate court with a direction to decide it afresh in accordance with law.
28 Since the suit was filed nearly one and half decade back i.e. on 21.7.2007, therefore, the learned first appellate court shall proceed to decide the case as early as possible and preferably before 30.9.2022.
::: Downloaded on - 23/04/2022 20:07:47 :::CIS 1729 The parties through their respective counsel are directed to appear before the learned first appellate court on 11.5.2022.
30 Pending application(s), if any, also stands disposed of.
.
(Tarlok Singh Chauhan)
Judge
23.4.2022
(pankaj)
r to
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