Patna High Court - Orders
Smt.Gayatri Devi vs Ram Balak Singh & Ors on 1 April, 2013
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
Patna High Court MA No.251 of 2004 (6) dt.01-04-2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.251 of 2004
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Smt. Gayatri Devi, D/o - Govind Singh, W/o - Nrip nandan Sharma,
resident of village + P.O. Alinagar, via Surajgarha, P.S. - Surajgarha,
District - Munger.
---- Plaintiff respondent---Appellant.
Versus
1. Ram Balak Singh, son of Late Jano Singh, resident of village + P.O.
Rampur, P.S. - Surajgarha, district - Munger
----Defendant 2nd Party.
2. Smt. Mahnia Devi, W/o - Bino Paswan, resident of village - Ratanpur,
P.S. - Surajgarha, District - Munger.
3. Bishundeo Mahton, S/o - late Chandu Mahton, resident of village -
Rtanpur, P.S. - Surajgarha, District - Munger.
4. Smt. Chandra Mukhi Devi, W/o - Kapildeo Singh, resident of village -
Alinagar, P.S. - Surajgarha, District - Munger.
5. Tanis yadav, S/o - Somar Yadav, resident of village - Kashoi
Shelakarra, P.S. - Surajgarha, District - Munger (Lakhisarai).
6. Bidya Bind, son of Lakhpati Bind, resident of village - Alinagar, P.S. -
Surajgarha, District - Lakhisarai.
---- Defendant-appellants--- Respondents
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Appearance :
For the Appellant/s : Mr. Pravina Kumari
Mr. Rama Sinha
For the Respondent/s : Mr. Praveen Kumar
Mr. Rakesh Chandra
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL ORDER
25 01-04-2013Heard learned counsel for the appellant and the counsel for the intervener in I.A. No. 2329 of 2013.
As aggrieved, the matter is being finally disposed of at this stage, other respondents in spite of notices did not appear.
By filing interlocutory application on behalf of Smt. Patna High Court MA No.251 of 2004 (6) dt.01-04-2013 Anupam Devi, wife of Pawan Kumar Singh, village and post - Alinagar, P.S. - Surajgarha, District - Lakhisarai, it is submitted that the deceased respondent no. 1 Most. Sharda Kumari had already executed a will for which Probate Application No. 9/2013 is pending before learned District Judge, Munger. But, name of respondent no. 1 here has already been expunged earlier vide order dated 18.02.2013. Further, after some argument, it is agreed that without affecting the right of intervener, if any, this application be disposed of without any adjudication.
This is an appeal preferred against judgment dated 26th May 2004 in S.T.A. No. 10/1999 arising out of Title Suit No. 73/1990 disposed of by 2nd Sub-Judge, Lakhisarai.
The main grievance against the order of the appellate court is that without considering the materials available and arriving at the conclusion that those evidences are insufficient to decide the matter in controversy and even any requirement of additional evidence court below just by framing altogether ten issues including the six issues already framed by the trial court, discussed and remanded the appeal for a fresh finding on the issues so framed.
It is true that the Appellate Court has right to remand as provided under Order XXXXI Rule 23 of the Code of Civil Patna High Court MA No.251 of 2004 (6) dt.01-04-2013 Procedure which reads as such :-
"23. Remand of case by Appellate Court - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit 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."
As well in Rule 23A which also speaks as such : -
"23-A. Remand in other cases - where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."
But, at the same time, this right of remand is an exceptional right and before exercising it, it is the mandatory for the Appellate Court to examine the materials available and Patna High Court MA No.251 of 2004 (6) dt.01-04-2013 preferably decide all the relevant issues in case of need finding shortage of evidence, there is other provision as contemplated under Rule 27 of the Code which reads as such : -
27. Production of additional evidence in Appellate Court - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
The Appellate Court are to examine and, if at all, any Patna High Court MA No.251 of 2004 (6) dt.01-04-2013 additional evidence is required it is to be procured unless there appears any circumstance indicating that in spite of all the efforts taken it is not possible for the Appellate Court to do so and that can only be done by trial court, order of remand is to be avoided.
Here in the instant case, the learned Appellate Court has discussed the issues framed by the trial court in paragraph 11 of the judgment and in subsequent paragraphs except referring the oral and documentary evidence avoided to examine them but frames altogether ten issues in paragraph 17 of the judgment, remanded the matter for fresh finding on the issues, but on going through the short judgment there appears no attempt made to examine the materials available on their own merit and arrive at any decision as per the provisions stated above including rule 24 of Order XXXXI of the Code which reads as such: -
"24. Where evidence on record sufficient, Appellate Court may determine case finally -
Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the Patna High Court MA No.251 of 2004 (6) dt.01-04-2013 appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
In the result, finding the order of the Appellate Court unsustainable, it is set aside, the appellate court is directed to hear the appeal on merit on examining the materials and provisions therein and pass fresh judgments preferably within two months on receipt/commission of proceeding. There shall be no order as to cost.
Rajeev/- (Akhilesh Chandra, J.)