Punjab-Haryana High Court
Harbans Lal (Died) Through Lrs. vs Mahant Gurmukh Dass (Died), Chela ... on 31 May, 1999
Equivalent citations: (1999)123PLR309
Author: Amar Dutt
Bench: Amar Dutt
JUDGMENT Amar Dutt, J.
1. The facts necessary for the disposal of this appeal are as under:-
2. In January, 1972, a suit was filed by Harbans Lal and four others under Section 92 of the Code of Civil Procedure after seeking permission under Order 1 Rule 8, CPC for removal of Mahant Gurmukh Dass from the Managership of Sodal Trust Property which is situated in the estate of Jalandhar City for the following reliefs:-
a) Removal of the defendant from the manager-ship of Sodal Trust property situated in the estate of Jullundur;
b) For the appointment of New Manager or the trustee of the aforesaid institution;
c) Vesting the property in a New Manager or the trustee;
d) Directing the defendant to deliver possession of the trust property in his possession to the plaintiffs or the person entitled to the possession according to the orders of the Court;
e) Directing accounts and enquiry;
f) Settling a Scheme; and
g) Granting such further or other relief as the nature of the case may require.
3. On a contest being raised by the defendant, the parties had gone to trial on the following issues: -
1. Whether the plaintiffs have locus standi to file this suit?
2. Whether the defendant had committed any breach of the terms of the Trust. If so, to what effect?
3. Relief.
4. The suit had been decided in favour of the plaintiffs with the result that Mahant Gurmukh Dass had filed Regular First Appeal No. 1640 of 1977 to challenge the judgment and the decree.
5. While disposing of the suit on September 21, 1977, the Additional District Judge Jalandhar had drawn the following conclusions:-
"In the light of above finding on issue Nos.1 and 2, the case of the plaintiff for the removal of the defendant as Manager of the property succeeds. The property being in the nature of the trust property it is necessary that it should be properly managed by some responsible persons. The matter of trust cannot be left in the hand of single person because it is always liable to be exploited. Consequently, I appoint a Board of nine trustee consisting of five plaintiffs and the following persons:-
i. Bakshi Madan Mohan, Advocate, Jullundur.
ii. Shri Ajudhia Parshad Chadha of Jullundur.
iii. Shri Amrit Parkash Sehgal of M/s Jagdamba Engineer Works Jullundur.
iv. Shri Hans Raj Suri of Hansa Agency Basti, Nau, Jullundur.
Shri Madan Mohan Bakshi, Advocate is appointed the convener. He shall convene the first meeting of the trust on 24.9.1977 and thereafter the Trust shall function according to the scheme as framed. The names of the aforesaid trustees have been proposed by the plaintiffs themselves and no objection is raised to any of them. The aforesaid Trustees shall take over the management from the defendant who shall deliver the possession of the suit property forthwith. For the administration of the trust property a scheme is settled which shall be treated as a part of this judgment and the decree. In the present suit, a decree on the aforesaid lines is granted in favour of the plaintiffs and against the defendant. The defendant having been guilty of mis-management of the property and having prolonged the litigation on frivolous pleas shall also be liable for the cost of the suit. The Trustees may be notified."
6. During the pendency of the appeal, Mahant Gurmukh Dass died and C.M. No.1008-Cl-1978 was filed by one Chanan Dass for being brought on record as legal representative of Mahant Gurmukh Dass. Before the Civil Miscellaneous and the appeal could be finally disposed of, Mahant Chanan Dass also died whereupon CM. No.1049-CI of 1983 was filed for bringing on record Jagdish Dass as legal representative which was allowed subject to all just exceptions.
7. The Regular First Appeal was heard in the absence of counsel for the respondents and the learned Single Judge while disposing of the same, was of the view that qua reliefs (a) and (e) which had been sought for by the plaintiffs, the appeal had abated owing to the death of Mahant Gurmukh Dass. He was also of the view that the abatement was partial and, as such, qua the other reliefs the appeal was still maintainable and had to be disposed of on merits. While dwelling on the merits of the case, the learned Single Judge observed to the following effect:-
"This is more so when the relief for the settlement of such a claim does not at all depend upon the charges against the trustee, but upon its being thought necessary for the welfare of the trust and its being conducive to the better management of the Trust property. Since the rights of the present appellant i.e. Mahant Jagdish Dass, as such, have come into existence after the disposal of the suit and during the pendency of the appeal, I feel that only desirable course to be adopted appears to be to remand the case under Order 41, Rule 23-A of the Code for a retrial in accordance with law. Further, it is the stand of Mr. Bindra that as a matter of fact, the Court has failed to frame any scheme which has to be treated as part of this judgment and decree."
8. The learned Single Judge thereafter set aside the judgment and decree in appeal and remanded the case for fresh decision in accordance with law.
9. Aggrieved by this order Harbans Lal has come up in appeal.
10. We have heard Shri J.K. Sibal, Senior Advocate with Shri Kumar Sethi, Advocate for the appellant and Shri R.S. Bindra, Senior Advocate with Shri Umesh Wadhwa, Advocate and Shri O.P. Hoshiarpuri, Advocate for the respondents.
11. On behalf of the appellant, it has been submitted that the learned Single Judge has erred in holding that since the right of Mahant Jagdish Dass has come into existence only after the disposal of the suit and during the pendency of the appeal, it would be proper to remand the case. It has also been submitted that the learned Single Judge has further erred in observing that the judgment and decree had to be set aside because the trial Court had failed to frame any Scheme which had to be treated as part of the judgment and decree. According to the appellant, since the right of management inherited by Jagdish Dass would not be different from the right of his predecessor-in-interest, Mahant Gurmukh Dass, unless the finding of mis-management which has been returned by the trial Court qua the functioning of Mahant Gurmukh Dass is reversed, Jagdish Dass cannot be allowed to manage and control the Trust property as he has merely stepped into the shoes of his predecessor-in-interest. it was also submitted that Jagdish Dass would not be entitled to lead any additional evidence in the matter and so there was no occasion for the learned Single Judge to remand the case for fresh trial. It was further urged that the observation that the judgment and decree of the Court below has to be set aside because of the failure of the Additional District Judge to frame a Scheme of management is against the record and on this ground too the remand order cannot be sustained. Shri Sibal also wanted us to hear him on the merits of the decree of the trial Court and after going into the merits of the case, to uphold the same but this suomission was opposed by Shri Bindra.
12. On behalf of the respondents, while no serious challenge was made to the ground on which the order of remand was being assailed, yet, the prayer that we should hear and dispose of the appeal on merits was opposed and it Was submitted that such a procedure cannot be adopted by us in view of the fact that primarily in the Letters Patent Appeal the order of remand can only be assailed and if the same is set aside, the appeal will have to be heard afresh by the learned Single Judge of this Court for being disposed of on merits.
13. We have carefully considered the arguments advanced by the learned counsel for the parties and perused the record.
14. In the present case, the circumstances leading to the filing of the present appeal are not in dispute. On the date when Regular First Appeal No. 1640 of 1977 came up for hearing before the learned Single Judge, the counsel for Harbans Lal was not present and the appeal was heard in his absence. The learned Single Judge after hearing Shri. Bindra made the following observations:-
(i) That Jagdish Dass had been allowed to be substituted as the Legal Representative of Gurmukh Dass subject to just exceptions.
(ii) That the appeal stands abated qua reliefs mentioned at serial Nos. (a) and (e).
(iii) That the right of Jagdish Dass had accrued after the disposal of the suit and during the pendency of appeal. Therefore, it was desirable that the case should be remanded back for re-trial in accordance with law.
(iv) That the trial Court had failed to frame a Scheme which has to be treated as part of the judgment and the decree."
15. It is not disputed before us that judicial precedent is will settled that before an order of remand can be passed, the Court has to consider and set aside the findings given by the Court below. To this effect is the view expressed by this Court in "Smt. Dhapan v. Vijay Singh and Ors. ", (1980)82 Punjab Law Reporter 211 in which after reproducing the provisions of Order 41 Rule 23 of the Code of Civil Procedure, it is observed as under in para 6:
"6. After hearing the learned counsel for the parties, I am clearly of the opinion that under no circumstances, the decree of the trial Court in both the suits could be set aside by the lower appellate Court. Order 41 Rule 23-A of the Code of Civil Procedure reads as under:-
"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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."
"Order presupposes that if the decree is reversed in appeal and its retrial is considered necessary, only then the powers as it has under Rule 23 are to be exercised. It does not authorise the Appellate Court to reverse the decree as a matter of course whenever the Court thinks that on some issues retrial is considered to be necessary. In order to reverse a decree, the finding given by the Court on the issues is to be considered and is to be set aside before the decree as such could be reversed in appeal. Without doing the same, there are no powers with the Appellate Court to reverse the decree in appeal. Thus, the lower Appellate Court has erred in setting aside the decree passed by the trial Court and remanding the case for fresh trial."
16. To the same effect are the observations made in Jangir Singh and Ors. v. Surinder Singh and Ors., (1979)81 Punjab Law Reporter 690 and Kartar Singh v. Punjab and Sind Bank with its Branch Office at Malour Mandi and Ors., (1987-2)92 Punjab Law Reporter 92.
17. In the present case, the learned Single Judge has ordered the remand on two grounds namely that the right of Mahant Jagdish Dass has come into existence only after the disposal of the suit and during the pendency of the appeal. The fact that Mahant Jagdish Dass is now contesting the case in place of Mahant Chanan Dass and Mahant Gurmukh Dass would itself not entitle him to lead fresh evidence on the facts in issue before the trial Court. Jagdish Dass cannot have any better right than his predecessor-in-interest who had already led sufficient evidence in relation to the dispute during the trial of the case and, therefore, there was no occasion for the learned Single Judge to have allowed him any further opportunity to lead evidence.
18. The second ground on which the remand has been ordered is the failure of the Court below to frame a Scheme of management as it was required to do by law while disposing of the suit under Section 92 CPC. This ground, we are afraid, is also not available because on going through the record, we find that a Scheme of management has been filed and appended with the judgment of the trial Court and is available in the Lower Court record. In view of these circumstances, we are of the considered view that the order passed by the learned Single Judge remanding the case cannot in law be sustained.
19. We may now deal with the submission of the learned counsel for the appellant requesting us to hear the arguments on the merits of the appeal filed against the judgment and decree of the trial Court instead of remanding the case to the learned Single Judge for disposal in accordance with the law.
20. The present appeal seeks to challenge the remand order passed by the learned Single Judge under Order 43, Rule 23, C.P.C. The appeal against the said order would be maintainable under Order 43, Rule 1 (u) CPC even though this appeal has been filed under Clause X of the Letters Patent Act. The scope thereof, in our opinion, will have to be restricted within the para meters of the appeal under Order 43, Rule 1(u) C.P.C. While dealing with the similar situation in Jainul Abideen Marakayar and Ors. v. Habibulla Sahib, A.I.R. 1928 Madras 430, it was held as under: -
"We think that this provision confines the scope of the appeal to the question of the correctness of the order of remand, which may be impeached either on the ground that the remand itself was illegal as the decision of the fist Court was not on a preliminary point or on the ground that the decision of the preliminary point by the appellate Court is erroneous. No other questions can be raised in this appeal, whatever bearing they may have upon the merits of the appellants' case. That this is the right view to take will appear if the question is looked at in another way. Suppose no appeal is preferred against the order of remand and the case is tried by the first Court and a fresh decree passed after re-trial: a first appeal will lie, against such a decree by the party aggrieved and a further second appeal will also lie from any decree which may be passed by the appellate Court, subject of course to the conditions laid down under Section 100 Civil P.C. If such a second appeal comes to be preferred the only question which cannot be re-agitated in second appeal by reason of Section 105, sub Section 2 is the correctness of the finding of the point upon which the order of remand had been made. All other questions which may be raised in a second appeal will be open to either party to be raised in such second appeal. To accede to the appellant's contention would be practically to convert the appeal from the order of remand into an appeal from the decree itself, because if the appellants are to be allowed to raise points decided against them by the lower appellate Court in order to sustain the decree of the Court of first instance, the respondents also must equally be permitted to contest the findings of the appellate Court against them, in order to sustain the decree of the lower appellate Court. In our opinion, such a procedure is altogether unwarranted, and the only point which may be raised in this appeal is the correctness of the finding of the Subordinate Judge that Ex.2, the conveyance by defendant 1 in defendant 2's favour is a sale and not a gift as held by the District Munsif. We need hardly add that upon this view neither party will be precluded from raising any other question which may be legitimately open to him, if and when this case comes before this Court hereafter in second appeal."
21. We are, therefore, of the opinion that it is neither legal nor proper for us to hear arguments on the merits of the case. Apart from this, if we hear arguments on the merits of the case, one of the parties is likely to lose right of appeal before a Division Bench of this Court. In view of this, we feel that there is no justification for us to go into the merits of the decision of Additional District Judge though the learned Single Judge has gone into the same at the first instance.
22. For the reasons recorded above, the appeal is accepted. The order of remand is set aside and the case is sent back to the learned Single Judge for fresh decision in accordance with law.