Himachal Pradesh High Court
Parveen Kumar vs Upendra J on 17 March, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 17th DAY OF March, 2022 BEFORE .
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN FIRST APPELLATE ORDER NO.304/2021 BETWEEN:
PARVEEN KUMAR, S/O SH. JAGAT RAM AGED 40 YEARS, R/O BHAGNI, MAUZA SIDHBARI, TEHSIL DHARAMSHALA DISTRICT KANGRA (H.P.) ....APPELLANT (BY MR. K.D. SOOD, SR. ADVOCATE WITH MS. RANJANA CHAUHAN, ADVOCATE) AND CHANDERKANTA THROUGH HER LRs:
1. VIKAS DUTT
2. VISHAL DUTT, SONS OF LATE SMT.
CHANDER KANTA BOTH RESIDENTS OF BHAGNI, MAUZA SIDHBARI, TEHSIL DHARAMSHALA DISTRICT KANGRA, (H.P.) ....RESPONDENTS (BY MR. AJAY SHARMA, SR. ADVOCATE WITH MR. AJAY KUMAR THAKUR, ADVOCATE) ___________________________________________________________________ This appeal at the instance of the defendant is directed against the judgment dated 5.10.2021 passed by the learned District Judge, Kangra at Dharamshala in Civil ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 2 Appeal (RBT) No.30D/XIII/2020/2018, whereby he reversed the judgment and decree passed by the learned Trial Court dated 29.3.2018 in Civil Suit No.1/07 and remanded the .
case to the Trial Court after directing it to frame an issue and also appoint a Local Commissioner to demarcate the property in dispute.
2. The brief facts of the case are that the plaintiff respondent herein filed a suit for permanent prohibitory injunction for restraining the defendantappellant herein for making or projecting the lintel of his house over the land of the plaintiff and in the alternative for mandatory injunction in case it was found that the defendant tried to make encroachment upon any part of the suit land during the pendency of the suit.
3. The suit was contested by the appellantdefendant on the ground that the defendant had constructed the boundary wall in his area and had kept three feet land beyond the boundary wall towards the suit land and that no projections were being raised on the land of the plaintiff and that the defendant was not interfering with the land of the plaintiff and rather it was the plaintiff, who had made encroachments on the land of the defendant.
::: Downloaded on - 23/03/2022 20:10:17 :::CIS 34. On the pleadings of the parties, learned Trial Court framed the following issues on 11.5.2007:
a. Whether the plaintiff is entitled to relief of .
permanent injunction, as prayed for? OPP b. Whether the present suit is not maintainable?
OPD c. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD d. Whether the plaintiff has filed the present suit as a counter blast and effect thereof? OPD e. Relief.
5. After recording the evidence and adverting the same, the learned Trial Court dismissed the suit by holding that the plaintiff was not entitled to either permanent injunction or mandatory injunction and that the suit of the plaintiff was misconceived and that no demarcation report has been placed by the plaintiff or demarcation sought when the earlier application for demarcation had been dismissed.
6. Feeling aggrieved with the judgment and decree passed by the Trial Court, the plaintiffrespondent filed an appeal before the District Judge, Kangra at Dharamshala, who by his judgment dated 5.10.2021 has reversed the judgment of the learned Trial Court dated 29.3.2018 and ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 4 after setting aside the judgment has remanded the case back as aforesaid.
7. It is vehemently argued by Shri Kapil Dev Sood, .
learned Senior Advocate assisted by Ms. Ranjana Chauhan, Advocate that the findings recorded by the learned courts below are totally perverse and based on misreading of oral and documentary evidence as also the pleadings of the parties. It is argued that the appointment of Local Commissioner in the facts and circumstances of the case was not required especially when there was no such prayer made by the plaintiff and that the issues, already framed, covered the controversy between the parties. Mr. Sood also argued that the relief of mandatory injunction was only asked for in the alternative, i.e., if the plaintiff was dis possessed during the pendency of the suit. As such, the wholesale remand of the case that too after setting aside the judgment and decree passed by the learned court below was totally unwarranted in law.
8. On the other hand, Shri Ajay Sharma, learned Senior Advocate assisted by Mr. Ajay Kumar Thakur, Advocate, has argued that the judgment of the learned First Appellate Court is fully justified as it has been passed after ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 5 taking into consideration the facts and circumstances of the case and, therefore, calls for no interference.
9. I have heard learned counsel for the parties and .
gone through the material placed on record.
10. It is more than settled that the Appellate Court would not ordinarily remand a case to the lower court merely because it considers the reasons of the lower court in some respects to be wrong. Such remand orders lead to unnecessary delay and cause prejudice to the parties of the case.
11. In coming to such conclusion, this Court is duly fortified and supported by a judgment of the Hon'ble Supreme Court in Ashwinkumar K. Patel Vs. Upendra J.
Patel and others, 1999 (3) SCC 161, wherein in para 8, it was observed as under: "8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 6 considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified.
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It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary."
12. The legal preposition regarding remand has been culled out by the Hon'ble Supreme Court in P.Purushottam Reddy and another Vs. Pratap Steels Ltd. 2002 (2) SCC 686 in para No.10 regarding remand, which reads as under: "10. 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 the CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 7 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 inasmuch 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 therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered preeminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of Subrule (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 ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 8 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 manilal nanavati v. Sushila Mahendra Nanavati (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 dehors 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 41 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 rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 9 case is not covered either by Rule 23 or Rule 23A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
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13. 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.
14. Adverting to the facts of the instant case, it would be noticed that the relief of mandatory injunction was asked for only in the alternative if the plaintiff was dispossessed during the pendency of the suit. Noticeably, the plaintiff respondent did not bring on record any material to suggest that he has been dispossessed during the pendency of the suit or that the status quo as existed on the spot had been disturbed by the defendants. In such circumstances, obviously, the learned District Judge was absolutely in error and wrong in firstly remanding the matter back to the learned Trial Court and thereafter, directing it to frame a specific issue regarding the relief of mandatory injunction.
15. As regards the appointment of Local Commissioner is concerned, I am of the considered view that the same was absolutely necessary taking into consideration ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 10 the fact that the Local Commissioner in fact had been appointed to demarcate the suit land alongwith other lands, as find mentioned in the application under Order XXVI Rule .
9 read with Section 151, CPC dated 25.3.2008. Even after the application came to be allowed, the Local Commissioner had not demarcated the suit land alongwith other lands.
This order had attained finality and, therefore, it was incumbent upon the Appellate Court to have appointed the Local Commissioner.
16. The other moot question is that whether for this purpose, the First Appellate Court could could have remanded the case to the learned Trial Court and the answer is obviously negative, as learned Appellate Court could have asked the Local Commissioner to submit the report and thereafter, it should have proceeded further in accordance with law.
17. In coming to such conclusion, I am duly supported by the judgment rendered by the learned Division Bench of this Court in Prem Kumar and others Vs. Parkash Chand and others, 2002 (3) SLC 358, wherein it was held as under: ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 11
6. Learned Counsel for the appellants contended that the directions issued by the learned Additional District Judge are not in accordance with the provisions of Rules 23, 23 .
A or 25 of Order 41, Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). He submitted that the appellate Court can make an order of remand either under Rule 23 or 23A or Rule 25 of Order 41 of the Code.
7. So far as Rule 23 is concerned, the said provision obviously is not applicable to the case in hand in view of the fact that the trial Court had not disposed of the suit on a preliminary point. The question, therefore, is either the order is passed' by the first appellate Court under Rule 23A or Rule 25 of Order 41 of the Code. But, in either case, contended the learned Counsel, it was obligatory on the part of the first appellate Court to frame issue(s). If the first appellate Court was of the view that the decree passed by the trial Court was liable to be reversed which had been passed on merits, it was open to the appellate Court if it thought fit to remand the matter by directing what issue or issues should be framed in the case so remanded and by sending a copy of the judgment or order to the Court from whose decree the appeal was preferred, i.e., to the trial Court. But the said course has not been adopted by the first appellate Court. Similarly, ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 12 Rule 25 has also not been invoked inasmuch as it was incumbent upon the first appellate Court to frame issue or issues and refer the same to the trial Court from whose decree the appeal is .
preferred by directing the said Court to take additional evidence if required, proceed to try such issue or issues and return the evidence to the appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the appellate Court.
That is, however, not done. Hence, in either case, the order passed by the first appellate Court deserves to be quashed and set aside.
8. We find considerable force in the argument of the learned Counsel for the Appellants. In our opinion, in either case, i.e. either under Rule 23A or under Rule 25 of Order 41 of the Code, the first appellate Court ought to have framed additional issue(s) and ought to have issued necessary directions. In our considered opinion, the order passed by the first appellate Court is not in conformity with law. It is, therefore, liable to be quashed and set aside. Accordingly, the appeal filed by the Appellants stands allowed. The order passed by the Additional District Judge, Mandi, dated 30th June, 2001 is hereby quashed and set aside by directing the appellate Court to pass an appropriate order by framing necessary issue(s) and by making necessary directions to ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 13 the trial Court. In the facts and circumstances of the case, no order as to costs."
18. To similar effect is the judgment rendered by the .
learned Single Judge in Nand Lal Vs. Sewak and others 2005 (3) SLC 340, wherein it was held as under:
"3. After hearing the learned Counsel, and perusing the record, in my opinion, the present appeal must be allowed and the order dated 3.11.2004, passed by the Additional District Judge must be modified. After framing additional issues, in my opinion, the learned Additional District Judge could not have set aside the judgment and decree of the learned Trial Court and could not have remanded the whole case to the learned Trial Court for trial afresh after allowing opportunity to both the parties to produce evidence in support of the additional issues. Under Order XLI Rule 25 Code of Civil Procedure it has been provided that where the Appellate Court frames additional issues, the only course open to the Appellate Court is to refer the same, i.e., additional issues, for trial to the Trial Court and in such a case the Appellate Court shall direct the Trial Court to take additional evidence required and such Court shall proceed to try such issues and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor. In the ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 14 present case, instead of following the procedure provided under Rule 25 of Order XLI Code of Civil Procedure, Learned Additional District Judge had set aside the judgment and .
decree of the Trial Court and had remanded the case to the Trial Court for decision afresh after giving opportunity to both the parties to adduce evidence on the additional issues framed by the learned Additional District Judge. As referred to above, this is just contrary to the well settled proposition of law and even otherwise it is contrary to the provisions of Order XLI Rule 25 Code of Civil Procedure.
4. For the reasons recorded above, the present appeal is allowed and the order dated 3.11.2004, passed by the Additional District Judge is modified. Instead of the judgment and decree of the learned Trial Court being set aside and the whole case being remanded to the Trial Court for trial afresh, it is directed that the additional issues framed by the learned Additional District Judge shall be referred to the Trial Court and the Trial Court shall give opportunity to both the parties to adduce evidence in support of the additional issues framed by the learned Additional District Judge. It is further directed that thereafter the learned Trial Court shall proceed to try those issues and shall return the evidence to the Appellate Court together with its findings ::: Downloaded on - 23/03/2022 20:10:17 :::CIS 15 thereon and the reasons therefor, as provided under Order XXXXI Rule 25 CPC."
19. Thus, it is clear from the aforesaid judgments .
rendered by this Court that the matter cannot be remanded by the First Appellate Court to the Trial Court in its entirety for fresh disposal or for appointment of Local Commissioner or to take additional evidence as matter of course. Rather it is for the Appellate Court to direct the trial Court to appoint Local Commissioner and place the report of the Local Commissioner with objections, if any, before the Appellate Court together with its findings thereupon and reasons therefor within such time as may be fixed by the Appellate Court,
20. Accordingly, the present appeal is partly allowed and the judgment passed by the learned First Appellate Court is set aside. The First Appellate Court shall call upon the Trial Court to appoint a Local Commissioner, alongwith the objections to the report if any and after rendering its findings submit the same to the first Appellate Court.
::: Downloaded on - 23/03/2022 20:10:17 :::CIS 1621. The parties through their counsels are directed to appear before the first Appellate Court on 28.3.2022 for further proceedings in accordance with law.
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22. Before parting, it needs to be noticed that the instant suit was intially instituted on 3.1.2007, i.e., one and a half decade back. Therefore, in the given facts and circumstances, the first Appellate Court is directed to decide the same as expeditiously as possible and in no event later than 30.6.2022.
Pending application(s), if any, shall stand disposed of accordingly.
(Tarlok Singh Chauhan) Judge 17.3.2022 (mamta) ::: Downloaded on - 23/03/2022 20:10:17 :::CIS