Rajasthan High Court - Jaipur
Chote Lal vs Kalyan Prasad And Ors. on 30 April, 1986
Equivalent citations: AIR1987RAJ75, 1986(2)WLN234
JUDGMENT Mohini Kapur, J.
1. The question which arises or determination in this revision is about the urisdiction of the trial Court after the matter has been remanded to it by the appellate Court. In this case, a suit for partition of property was filed in the Court of Civil Judge, Bharatpur, who decreed the suit on 27-9-1976. In an appeal before the Additional District Judge, Deeg (Bharatpur), a certified copy of one document was admitted in evidence under CX41, Rule 27, C.P.C. The appellate Court allowed the appeal and set aside the judgment of the learned Civil Judge and issued a direction at the time of the remand that the plaintiff and defendant shall be given an opportunity to prove or disprove the document and thereafter the decision should be given. After the matter went back to the learned Civil Judge, the non-petitioners moved an application under Order 13, Rule 2, C.P.C. for the production of a document and this was admitted by the impugned order by the learned Civil Judge and the same has been challenged in this revision.
2. The contention of the learned counsel for the petitioner is that the jurisdiction of the Court after remand is limited to the directions made by the appellate Court and it is not open to the trial Court to allow the production of fresh documents or consider other matters in contravention of the order of remand.
3. As against this, the learned counsel for the non-petitioners has contended that while passing the order of remand, the learned Additional District Judge has set aside the decree of the trial Court which means that it was an open remand and in such circumstances, the trial Court can try the suit and dispose it in accordance with the provisions of law without being circumscribed in any manner. According to the learned ounsel for the non-petitioners, the appellate Court in this case has not placed any limit on the powers of the trial Court and as such it was permissible for, the trial Court to admit document under Order 13, Rule 2, C.P.C. It is also contended that this Court should not interfere in revision because it cannot be said that the trial Court has acted with material irregularity and the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the petitioner.
4. The decisions of various Courts cited in this connection are as under : --
5. In Scientific Instruments Co. Ltd. v. Collector of Customs (Valuation Section), AIR 1976 Cal 38 the Appellate Collector under the Customs Act remanded the matter with the direction that Section 14(1)(b), Customs Act, should be applied but the Assistant Collector passed an order holding that the determination should be on the basis of Section 14(1)(b) of the Act. It was held that on remand the jurisdiction of the Assistant Collector was limited by the order of the appellate authority and determination should be on the basis of Section 14(1)(b) of the Act. It was held that on remand the Assistant Collector acted in excess of his jurisdiction which was limited by the order of the appellate authorky and it was his duty to comply with it. As the order was contrary to the direction of the appellate authority, it was held to be illegal and unjustified and without jurisdiction.
6. In Charles N. Ambrose v. Meenakshi Ammal Ramal Animal, AIR 1953 Trav Co. 109 it was held that when the order of remand determines the jurisdiction then the trial Court is not empowered to give a decision on a matter which has not been remanded for enquiry.
7. In Roop Kishore v. Guj Ram, ILR (1953) Raj 988 the Appellate Court while remanding a case issued directions to allow the amendment of plaint within one month from the date of remand. When the plaintiff filed the amended plaint one month after such date it was held that the trial Court could not accept the amended plaint and could not extend the time fixed by the trial Court. The order of the trial Court extending time was set aside.
8. In Budhilal Devipfasad v. Jagannathdas Gajrangdar, AIR 1963 Madh Pra 344 it has been held that the power and jurisdiction of the lower Court to deal with the suit, after remand, depends on the specifications of the remand order. Where the order of remand lays down any limits for the enquiry to be made by the lower Court, that Court has no jurisdiction to enter into any question which falls outside those limits.
9. In Balaswaraswami Varu v. Mallidi Dorayya, AIR 1972 Andh Pra 250, it was similarly held that the lower Court has to act within the limits of the remand order when the appellate Court directs to make enquiry on a particular point. It is not open to the lower Court to reopen the finding of the Appellate Court.
10. In Chandan Mal v. Rawat Mal, 1979 WLN 530 : (AIR 1980 Raj 139) the High Court remanded the suit back to the District Judge with the direction that he should allow the plaintiff an opportunity to examine one witness and then to dispose of the appeal according to law. It was further directed that no evidence of any other nature would be recorded by way of rebuttal. After remand the first appellate Court examined expert witnesses on behalf of both the parties with the consent of the parties. This procedure adopted by the District Judge was held to be illegal as it was in conflict with the direction given by the High Court and such a procedure cannot be adopted even with the consent of the parties.
11. On the other hand, learned counsel for the non-petitioner has placed reliance on Sanatan Mahapatra v. Hakim Mohammad Kazim Mohammad, AIR 1977 Orissa 194. The appellate Court after setting aside the judgment and decree of the lower Court remanded the suit to the trial Court directing a fresh disposal after framing a separate issue and also giving opportunity to the parties to adduce fresh evidence. In this case, the Appellate Court framed certain specific issues and referred it for trial to the Court. In the circumstances, it was held to be an open remand under Order 41, Rule 23-A, C.P.C., and in such circumstances it was held that the trial Court could allow the amendment of pleading after the order of the remand.
12. From the aforesaid decision, it can e said that a remand under Order 41, Rule 23-A, C.P.C., can be a plain and simple order; contemplating re-trial of the suit by the trial Court or it may be an order directing the trial Court to proceed in the suit in a specified manner. When the order of the appellate Court falls under the first category then the trial Court can exercise all the powers which it has for the disposal of a suit during the original trial. In exercise of the same, it can allow any application for producing further documents or for examining further witnesses and the like but when the remand is with a specific direction for a specific purpose then it is not open to the Court to proceed as if there are no restrictions on its powers. It has to act according to the specific directions.
13. The main question which can be said to arise in the present petition is whether the remand order passed by the first appellate Court was an open remand or it limited the jurisdiction of the trial Court to certain specific proceedings only. If the order in the present case can be said to be an open remand then I the lower Court can try the suit as if it was trying it for the first time and all the powers which a Court has in the disposal of a suit can be exercised by it. However, if the order of the first appellate Court is such which can be said to have placed limitations on the powers of the trial Court then the trial Court cannot go beyond the directions given by the appellate Court.
14. In the present case, the order of remand may again be referred to in order to judge as to what is the nature of it. In appeal before the District Judge, an application under Order 41, Rule 27, C.P.C., was accepted and a particular document which is a sale deed of the year 1926 (or 1920) was ordered to be taken in evidence and the parties were allowed to lead evidence in proof of this document as well as in rebuttal to this evidence. After doing so, the trial Court was to give a fresh decision. The order of the remand makes it very clear that the trial Court has to proceed in a specified manner which is to admit a particular document in evidence and allow the parties to lead evidence to prove or disprove the same. Such a direction cannot be said to be an open remand so as to allow the parties to reopen other matters and permit the Court to accept other documents which have not been admitted in evidence according to the directions of the first appellate Court. The jurisdiction of the trial Court is limited to the directions issued by the Appellate Court and it cannot go beyond this jurisdiction and admit documents which were not already on record. The learned Civil Judge, Bharatpur, has exercised its jurisdiction with material irregularity and illegality and as such this revision is accepted and the order-passed by the Civil Judge, Bharatpur, on 21st January 1985 is set aside.