Himachal Pradesh High Court
Jabbar Singh vs Shanti Swaroop on 23 October, 2006
Equivalent citations: 2006(3)SHIMLC58
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal, under Order 43 Rule l(u) of the Code of Civil Procedure, is directed against the judgment of the learned District Judge, Sirmaur District at Nahan, HP, in Civil Appeal No. 78-CA/13 of 2005 decided on 27th June, 2006, whereby he has accepted the appeal filed by the plaintiff (respondent herein) and remanded the case for fresh trial to the learned trial Court after framing some fresh issues.
2. Brief facts of the case are:
3. Plaintiff filed a suit for possession of the suit land. According to the plaintiff on 18.2.1999 some negotiations took place between him and the defendant. An agreement to sell was entered into on 18.2.1999 and Rs. 10,000/- was paid as earnest money to the plaintiff by the defendant. The plaintiff further submits that the defendant forcibly took possession of the suit land. According to the plaintiff, agreement dated 18.2.1999 stands cancelled and, therefore, the plaintiff is entitled to take possession of the suit land. In the plaint, it has also been alleged that the defendant, who is a clever and shrewd person, has fabricated another agreement which has been procured by playing fraud and, therefore, the subsequent agreement is not binding on the plaintiff.
4. The defendant filed written statement and did not deny execution of the agreement dated 18.2.1999. In fact execution of the said agreement is impliedly and explicitly admitted in the written statement. The case set up by the defendant was that he had paid Rs. 10,000/- as earnest money when the agreement dated 18.2.1999 was executed and that on 18.2.1999 itself he took possession of the suit land with the consent of the plaintiff. Thereafter, according to the defendant on 21.6.1999 a fresh agreement was executed between the parties. At the time of execution of the second agreement, the entire balance sale consideration was paid to the plaintiff. The defendant also averred that the plaintiff had made a statement on oath before the Assistant Collector IInd Grade (Settlement) Paonta, Camp at Rajgarh on 22.6.1999 wherein the plaintiff admitted that he had received the entire sale consideration of Rs. 1,20,000/-. The plaintiff also moved an application for transferring the possession of the suit land in favour of the defendant on 22.6.1999 before the Naib-Tehsildar (Settlement) Paonta. The defendant also relied upon other documents from the previous suit to show that the plaintiff had received the entire sale consideration.
5. No replication was filed to the written statement. On the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the plaintiff is entitled to the relief of possession of suit land as alleged? OPP
2. Whether the suit is not maintainable? OPD
3. Whether the plaintiff is estopped from his own act, conduct and acquiescence as alleged? OPD
4. Whether the plaintiff has no cause of action? OPD
5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD
6. Whether the plaintiff has executed written agreement in favour of defendant on 21.6.1999 as alleged? OPD
7. Relief.
6. The learned trial Court discussed and decided issues No. 1, 3 and 6 together. Except issue No. 5, all the issues were decided in favour of the defendant and consequently the suit of the plaintiff was dismissed. Aggrieved against the said judgment and decree, the plaintiff filed an appeal before the learned first Appellate Court. The learned first Appellate Court- came to the conclusion that the learned trial Court has erred in discussing and deciding the issues No. 1, 3 and 6 together. It has relied upon Ashwinkumar K. Patel v. Upendra J. Patel and Ors. , as well as a judgment of this Court in Shri Om Parkash and Ors. v. State of Himachal Pradesh and Ors. 2000 (2)Shim.L.C 240, and held that the issues should not have decided together.
7. The learned first Appellate Court also framed the following additional issues:
6-A Whether the plaintiff had entered into an agreement for sale of suit land with defendant on 18.2.1999 and as part performance thereof Rs. 10,000/- was paid as earnest money by the defendant to the plaintiff? OPP 6-B Whether the subsequent agreement of sale of the suit land was procured by the defendant from the plaintiff by practicing fraud as alleged? OPP 6-C Whether the suit land was never partitioned amongst the villagers and as such the said shamlat land stood vested in the State of H.P. as alleged? OPD
8. Though the learned first Appellate Court has noted some judgments, wherein it has been held that normally cases should not be remanded by an Appellate Court, if they can be decided on the material on record it has set aside the judgment of the learned trial Court and remanded the case to the learned trial Court for decision afresh. Aggrieved against the said orders of remand dated 27.6.2006, the appellant-defendant filed the present appeal.
9. I have heard Kanwar Kuldip Singh, learned Senior Advocate appearing for the appellant-defendant and Mr. Sandeep Kaushik, learned Counsel, for the respondent-plaintiff.
10. With regard to the framing of additional issues, it appears that the learned first Appellate Court did not even care to go through the pleadings of the parties before framing the additional issues. If it had read the pleadings carefully it would have realized that the additional issues do not arise at all.
11. The first additional issue (6-A) framed is regarding execution of the agreement dated 18.2.1999. Plaintiff urges that this agreement was entered into and he had received Rs. 10,000/- as earnest money. This fact is not denied by the defendant. Defendant also states that this agreement was executed and he had paid Rs. 10,000/- to the plaintiff as earnest money. Though in para 6 of the written statement date of the agreement is mentioned as 19.2.1999 instead of 18.2.1999, both the parties were ad-idem on the issue that agreement dated 18.2.1999 had been entered into and that Rs. 10,000/- had been paid by the defendant to the plaintiff. Therefore, the question of framing of this issue did not arise at all.
12. With regard to issue No. 6-B it would be pertinent to mention that in the plaint the plaintiff does not make any specific reference to the agreement dated 21.6.1999. It is only in para 7 of the plaint that he has stated that the defendant who is a clever and shrewd person has fabricated another agreement which is procured by playing fraud and that the agreement procured by fraud is not binding on the plaintiff. In the written statement, as already detailed hereinabove, the defendant took up a plea that the defendant had entered into an subsequent agreement on 21.6.1999 when the entire balance sale consideration was paid to the plaintiff. The plaintiff did not even choose to file any replication to this written statement. Issue No. 6 had been framed by the learned trial Court and onus was placed upon the defendant to show that the agreement dated 21.6.1999 had been entered into between the parties. Though the plaintiff has pleaded fraud in vague and general terms, he has not chosen to file replication and has not specifically pleaded how the fraud was committed upon him. It is well settled law that if there are allegations of fraud the details of such fraud have to be pleaded in detail. Despite this, once the onus was on the defendant to prove the agreement, the plaintiff while rebutting this issue may have led evidence to show that this agreement had actually not been executed or had been got executed by fraud. Therefore there was no need to frame issue No. 6-B.
13. With regard to issue No. 6-C, the approach of the learned Appellate Court shows total lack of application mind. No doubt in para 2 of the written statement, the defendant had stated that the land was owned by the State of Himachal Pradesh but keeping in view the fact that even as per the defendant he entered into two separate agreements with the plaintiff and claimed to have taken the possession from the plaintiff himself, he could not have claimed that the land was not owned or possessed by the plaintiff. Mr. Kanwar, learned senior Counsel submits that the appellant-defendant does not press this issue. Even otherwise, I find that this issue could not have been framed, since the pleadings show, that the defendant claims to have derived his possession and title from the plaintiff. It is thus clear that none of the issues framed by the learned Appellate Court arise for consideration.
14. Now coming to the question with regard to the discussion and decision by the learned trial Court of issues No. 1, 3 and 6 together. As far as Issues No. 1 and 3 are concerned, I am of the opinion that there was no error committed by the trial Court in discussing and deciding these issues together because both the issues overlap to some extent. Though normally, the trial Court should endeavour to decide every issue separately, there is no bar to two or more issues being decided together. Issues which overlap or where same evidence has to be considered and where points to be decided are similar in nature, can always be decided together. In the present case, I find that, the issue No. 1 is with regard to entitlement of the plaintiff to claim possession and issue No. 3 is whether he was estopped by his acts, conduct and acquiescence from claiming possession. These could have been conveniently decided together by the learned trial Court. However, the learned first Appellate Court was right in holding that the issue No. 6 which was a specific issue relating to the execution of the second agreement dated 21.6.1999 should have been decided separately.
15. The question which arises is whether in a case where the issues are decided together but the evidence has been discussed, should the learned Appellate Court go in for wholesale remand of the case or should it ask the learned trial Court to give its findings separately on each issue or should it itself decide the case on the material available on record. A perusal of the Order 41 Rule 23 CPC shows that the Appellate Court has power to remand a case in case the trial Court has decided the suit on preliminary points. In case the decree is reversed in appeal the Appellate Court has the authority to remand the case and to give direction to the trial Court as to on what issues the case is to be tried.
16. Order 41 Rule 23-A CPC provides that remand can also be made when the case has been decided otherwise than on preliminary issue and the decree is reversed in an appeal and retrial is considered, necessary. In the present case even according to the learned lower Appellate Court no re-trial was necessary since it has only directed that arguments be re-heard and the case be decided.
17. Rule 25 of Order 41 provides that the Appellate Court can remand the case when it feels that some new issues have to be framed and in such eventuality, the Appellate Court can refer the case to the trial Court for deciding such issues.
18. This Court as well as the Apex Court in a large number of cases has deprecated the practice of wholesale remand of the case by an Appellate Court. The Appellate Court should not normally remand the case unless there is no alternative left to it. As is apparent from the various provisions of law mentioned above there are various options available to the Appellate Court. It can either call for the finding on a particular issue or it can even remand the case back to the trial Court for fresh decision on a particular issue. The wholesale remand is only called for when all the issues are so inter-linked that decision on one issue would affect the decision of the other issue. Wholesale remand should be the last resort, which should be resorted to only when no other way out is possible. In Prem Kumar and Ors. v. Parkash Chand and Ors. 2002 (3) Shim. LC 358, a Division Bench of this Court set aside the order of wholesale remand and the first Appellate Court was directed to pass appropriate order by framing necessary issues and by issuing directions to the trial Court.
19. A single Judge of this Court in Nagar Mal and Anr. v. Bimal Kumar and Anr. Latest HLJ 2005 (HP) 679, held as follows:
From a perusal of the above, it would be clear that where the appellate Court feels that the trial Court had omitted to determine any question of fact and the appellate Court considers it essential for the right decision of the suit, the appellate Court may frame issues and refer the same for trial to the trial Court and shall direct such Court to take additional evidence and thereafter the trial Court and shall direct such Court to take additional evidence and thereafter the trial 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 present case, the learned District Judge found that the question regarding validity of the will could not be gone into without framing a specific issue on the will and resultantly the learned District Judge, set aside the judgment and decree of the trial Court and remanded the case to the trial Court with a direction to frame issue regarding will and afford opportunity to the parties to lead their evidence. In my opinion, the procedure adopted by the learned District Judge is contrary to the provisions of Order 41 Rule 25 CPC referred to above. Furthermore, in Prem Kumar's case (supra), it was held by a Division Bench of this Court that the first Appellate Court ought to have framed additional issue and ought to have issued necessary direction as provided under Order 41 Rule 25 CPC and the learned District Judge having failed to do so, the order passed by the first Appellate Court was not in conformity with law and was liable to be quashed and set aside. In Parma Nand's case (supra), it was held by a Division Bench of this Court that Rule 25 of Order 41 provides for a situation where the trial Court has failed to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was necessary for right decision of the suit and in such an eventuality, the appellate Court may settle the issue and remand the case to the trial Court for determination of issue so settled. It was further held in the said authority that the appellate Court could not resort to the "wholesale remand of the case". Thus, it would be clear that the order passed by the learned District Judge in the present case was not only against the provisions of Order 41 Rule 25 CPC but also against the law settled by this Court in the cases referred to above.
20. In the present case, I find that the learned first appellate Court has totally ignored the law settled and laid down by the Court. No case whatsoever was made out for wholesale remand of the case. The parties have led evidence and were fully aware of what the dispute between them was. On the basis of the evidence on record, the learned Appellate Court could have either decided the case itself or even if it felt that fresh issues are required to be framed or that the learned trial Court had gravely erred in discussing the issues together which may have prejudiced the plaintiff then also the matter could have been sorted out by calling the findings of the trial Court separately on each issue. In case the appellate Court felt that the entire evidence was already on record and there was no need to remand the case then on the basis of the evidence existing on record itself the learned Appellate Court should have decided all the issues itself.
21. In my view no case whatsoever was made out for the wholesale remand of the case and consequently the orders of remand passed by the learned Appellate Court is set aside. I also find that no error was committed by the learned trial Court in deciding issues No. 1 and 3 together. With regard to decision of issue No. 6 along with Issues No. 1 and 3 I am not expressing any view on the matter and I leave it open for the first Appellate Court to decide this question. If it feels that prejudice has been caused to the plaintiff by deciding issue No. 6 along with Issues No. 1 and 3, it may either call for the finding of the learned trial Court on issue No. 6 separately or if the defendant can demonstrate before the learned Appellate Court that finding on this issue has also been given by the trial Court then it may proceed to decide the issue on the basis of the evidence already on record.
22. The appeal is therefore allowed and the case is remanded to the learned first Appellate Court, who shall restore the appeal to its original number and decide the same on merits, after hearing the learned Counsel for the parties. The parties through their learned Counsel are directed to appear before the learned Appellate Court on 6th December, 2006. It is made absolutely clear that the observations 'made in this appeal are only for the purpose of deciding the issues raised in this appeal and nothing has been stated on the merits of the case. The learned Appellate Court shall decide all the issues on the basis of the material and arguments advanced before it. No order as to costs.
CMP No. 810 of 2006.
23. In view of the disposal of the main appeal, this application does not survive and stands disposed of accordingly. Interim order dated 18.7.2006 is vacated.