Punjab-Haryana High Court
Rajpal Singh And Ors. vs Nasib Singh on 1 April, 2003
Equivalent citations: (2003)135PLR556
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
JUDGMENT Ashutosh Mohunta, J.
1. The challenge in this petition is to the order dated April 17,2000 passed by the Additional District Judge, Patiala, whereby the suit filed by the respondent was remanded to the trial Court, for decision afresh issue Nos. 1 and 2.
2. The plaintiff-respondent filed a suit for specific performance of contract to sell dated June 5, 1987 with regard 10 agricultural land measuring 7 Bighas and 11 Biswas, situated at village Ajraur, Tehsil Rajpura, District Patiala, which is a part of big chunk of land measuring 38 Bighas and 16 Biswas, which was purchased by Mukhtiar Singh, predecessor-in-interest of petitioner Nos. 1 and 3, from Assistant Registrar (exercising the powers of Sales Officer, Co-operative Societies) on December 20, 1979, for a sum of Rs. 22,000/-in open auction. He allegedly deposited a sum of Rs. 5,500/- on December 21,1979, and the remaining sum of Rs. 16,500/-was deposited on December 26, 1979. On December 26, 1979 Mukhtiar Singh allegedly entered into an agreement to sell with the plaintiff-respondent and three others for the sale of one-half share of the said land for Rs. 11,000/- and the agreement was allegedly reduced into black and white. It has further been contended that Mukhtiar Singh executed an additional agreement to sell in favour of the plaintiff-respondent in respect of the agricultural land measuring 7 Bighas and 11 Biswas for a sum of Rs. 4,000/- on June 5, 1987. The grievance of the plaintiff-respondent was that Mukhtiar Singh had failed to perform his part of the agreement as he did not sell the land to him and three others, as agreed to. He, therefore, filed a suit for specific performance of the agreement.
3. Mukhtiar Singh denied that he ever entered into any agreement to sell either on December 26, 1979 or on June 5, 1987. He took up the plea that he being the Lambardar of the village and also an illiterate person, Nasib Singh plaintiff had got his thumb marks on the papers by telling lies to him.
4. The learned trial Judge on the pleadings of the parties framed a number of issues. However, it gave findings on the following two material issues on the point:-
1. Whether the defendant entered into an agreement to sell dated December 26, 1979 to the extent of 1/2 share of land measuring 38 Bighas 16 Biswas in favour of the plaintiff and others? .... OPP.
2. Whether the defendant executed subsequent agreement to sell dated June 5, 1987 regarding the agricultural land measuring 7 Bighas 11 Biswas for a sum of Rs. 4,400/- and received the entire sate consideration? .. OPP The aforesaid both the issues were decided against the plaintiff-respondent and in favour of Mukhtiar Singh defendant and it was held by the learned trial Judge that plaintiff Nasib had failed to prove due execution of the agreement in question.
5. Against the judgment dated February 24, 1995 passed by the Sub Judge IInd Class, Rajpura, plaintiff filed an appeal. The learned Additional District Judge, Patiala, did not decide the appeal on merits but remanded the case to the trial Court with a direction to hear and decide the suit afresh after hearing the arguments. It is against the order passed by the Additional District Judge, Patiala, that the present revision petition has been filed by the successors-in-interest of Mukhtiar Singh and other defendants.
6. I have heard the learned counsel for the parties and with their assistance have gone through the evidence brought on record.
7. A perusal of the judgment passed by the learned Additional District Judge would show that the remand of the case has been ordered on three grounds :-
(i) While giving findings on issue Nos. 1 and 2, the trial Court had not discussed the evidence fed by both the parties.
(ii) The said issues had been decided in a careless and casual manner on the technical ground of fraud, false and fraudulent documents, without going into the evidence led by the parties.
(iii) The trial Court had not considered each and every plea taken by the parties, which it was bound to consider.
A perusal of the judgment passed by the trial Judge shows that he had discussed the main issues, specifically issue No. 1 with reasonable details. It has been observed by the trial Judge that though defendant No. 1 had taken a specific plea that the "alleged agreement dated 26.12.79 is false and fraudulent document" but in the replication the plaintiff "has purposely omitted to give specific denial in this respect." Though under Order 41 Rule 23-A, C.P.C., appellate Court has the power to remand the case to the trial Court, but it seems that the present case has been remanded by the appellate Court without appreciating the facts. In the present case, Mukhtiar Singh, defendant No. 1, has not taken the plea that he had not thumb marked the alleged agreement to sell, but it has been pleaded by him that his thumb mark had been taken fraudulently by the plaintiff by taking benefit of his (Mukhtiar Singh's) illiteracy as well as post of Lambardar which he was holding at that time. This issue had to be decided by the trial Court on the basis of its power of observation as well as keeping in view the facts of the case. Instead of remanding the case to trial Court, it was expected of the appellate Court to give its own finding by appreciating the evidence brought on record by the parties. In the case reported as Sohan Singh v. Gurmej Singh and Ors., 2002(4) R.C.R. (Civil) 703, it has been held by a learned Single Judge of this Court that "remand of a case for re-trial is a serious matter and can be in exceptional circumstances where there had been no real trial or complete and effective adjudication of the matter. Remand is not meant for providing fresh opportunity to a party." Similarly, in the case reported as Munshi Ram and Ors. v. Harbans Lal, (2000-1)124 P.L.R. 436, it was held by this Court that before passing the order of remand, "it is necessary on the part of the first appellate Court to come to the conclusion that re-trial was necessary......." It was further held therein that the "first Appellate Court ought to have examined the records of the trial Court on merits and then to give finding whether the judgment and decree of the trial court could be sustained or not." In the case reported as Kartar Singh v. Punjab & Sind Bank with its Branch Office at Malout Mandi and Ors., (1987-2)92 P.L.R. 93, it was held by Hon'ble Mr. Justice D.V. Sehgal that "an order under Order XLI, Rule 23-A of the Code of Civil Procedure, presupposes that if the decree is reversed in appeal and if retrial is considered necessary, only then the power of remand is to be exercised by the appellate Court. The said rule does not authorise it 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 findings given by the Court on the issues are to be considered and are to be set aside before the decree as such could be reversed in appeal. Without doing so, there are no powers with the appellate Court to reverse the decree in appeal." In the present case, the learned Additional District Judge, Patiala, without appreciating the evidence brought on record, remanded the case for retrial.
8. In the light of the above discussion, I allow the revision petition and set aside the order dated April 17, 2000 passed by the Additional District Judge, Patiata, and restore the judgment and decree dated February 24, 1995 passed by the Sub Judge, Ilnd Class, Rajpura. The parties through their counsel are directed to appear before the District Judge, Patiala, on May 12, 2003. The District Judge, Patiala, may allocate the case to some other court of competent jurisdiction on the said date.
9. Nothing stated above shall be construed as the expression of my opinion on the merits of the case.