Rajasthan High Court - Jaipur
Anand Singh vs Smt Seema & Ors on 16 August, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
JUDGMENT
S.B. Civil Misc. Appeal No. 1931/2005
S.B. Civil Misc. Appeal No. 1605/2005
Anand Babu vs. Smt. Seema Devi And Anr.
DATE OF JUDGMENT ::: 16th August, 2016
HON'BLE MR. JUSTICE BANWARI LAL SHARMA
Mr. L.L. Gupta for appellant.
Mr. Mahesh Gautan for respondent.
Plaintiff- appellant Anand Babu has preferred both these appeals against the impugned judgment dated 21.04.2005 passed in Civil Regular Appeal No. 47/2003 and Civil Regular Appeal No. 52/2003 by learned Additional District Judge No. 3, Kota whereby learned Appellate Court quashed and set aside both the judgments and decree and remanded back the matter for deciding a fresh together.
Brief facts leading to these appeals are that plaintiff- appellant filed a suit for injunction against the defendant- respondent on 24th July, 1985 before the Court of learned Munsif Magistrate North, Kota in relation to a plot owned and possessed by plaintiff- appellant whose description is given in the plaint. It is stated in the plaint that the defendant on 27.04.1984 having received full consideration of Rs. 2,000/- agreed to sale the plot, out of the land of plot no. 12-D, 1-A and executed an agreement in favour of plaintiff appellant and also executed a power of 2 attorney in his favour which was got duly attested by the Notary Public. In persuance of agreement plaintiff- appellant also taken possession of the disputed property. He sought permanent injunction that defendant may be restrained and not to take forceful possession of the land in question possessed by plaintiff-appellant and further he may be restrained from raising any construction. The said suit was registered initially as Case No. 157/97. During pendency of aforesaid suit plaintiff filed another suit for injunction on 06.08.1985 stating therein that the defendant- respondents are bent upon to raise construction over the East- West boundary of the plot in dispute. As such further injunction may be issued against the defendant-respondents and they may be restrained from raising any construction with the adjoining gate towards East side of the remaining land of the defendant. The aforesaid two suits were consolidated and tried together. Later on the said suits were transferred to the Court of learned Additional Civil Judge (Junior Division) North, Kota and was registered as Civil Suit No. 18/2001.
Considering the stand taken by defendant no. 1 in the proceedings of the aforesaid suit, defendant- plaintiff served a notice dated 27.02.1987 calling upon the defendant No. 1 and 2 to execute the sale deed of the land measuring 31' x 15' in all 465 Square feet but the said notice which was initially received but later on it was got returned. When the 3 sale deed was not got registered than plaintiff- appellant initially moved an application in the aforesaid suit for amendment in the suit of injunction seeking relief of specific performance but the said application was dismissed by the Trial Court on the ground that it is a new cause of action as such the plaintiff filed the another Civil suit seeking relief of specific performance of the agreement dated 27.04.1987 in relation to the disputed piece of land. The aforesaid suit for specific performance was registered as Civil Suit No. 452/1988 in the Court of learned Munsif (North), Kota which was later on transferred to the Court of learned Additional Civil Judge (Junior Division No. 2), North, Kota and was re- registered as Civil Suit No. 17/2001.
In the aforesaid suit for specific performance bearing No. 17/2001 the defendant No. 1 to 5 filed their written statement however, the defendant No. 3 to 8 failed to appear. Therefore, an ex-parte proceedings were initiated against them.
Both the suits were tried and decided separately. Civil Suit No. 17/2001 was decided on 17.05.2003 by learned Additional Civil Judge ( Junior Division) No. 2, North, Kota and Civil Suit No. 18/2001 was decided on 27.05.2003 by the same Court against the judgment dated 27.05.2003 passed in Civil Regular Suit No. 18/2001. Respondents- defendants filed Civil Regular Appeal No. 47/2003 against 4 the judgment and decree dated 17.05.2003 passed in Civil Regular Suit No. 17/2001. Plaintiff- appellant preferred Civil Regular Appeal No. 52/2003 before the learned Additional District Judge No. 3, Kota which was heard and decided by the impugned common judgment dated 21.04.2005 by learned Additional District Judge No. 3, Kota, both the appeals were allowed and after quashing both the impugned judgments and decrees passed by learned Additional Civil Judge ( Junior Division No. 2), North, Kota and remanded the matters back as aforesaid and being aggrieved by the impugned judgment of Appellate Court, Plaintiff- appellant preferred these misc. appeals.
Since both the appeals are against the impugned judgment dated 21.04.2005. Therefore, both the appeals are heard together and are being decided by this common order.
Learned counsel for appellant Mr. L.L. Gupta submits that learned lower Appellate Court has erred in passing the impugned judgment dated 21.04.2005 while remanding the matter back to the Trial Court. In absence of any ground for remand contemplated under Order 41 Rule 23 and under Order 41 Rule 23 A C.P.C. Neither the Trial Court has disposed of the suit on preliminary issue nor the Appellate Court considered re-trial of the whole suit. In absence of these ingredients order of remand was not at all warranted. As such, the impugned order dated 21.04.2005 5 deserves to be quashed and set aside and these appeals may be allowed.
Learned counsel relied on P. Purushottam Reddy And Another Vs. M/s. Pratap Steels Ltd. Reported in (2002) 2 SCC 686, Municipal Corporation, Hyderabad Vs. Sunder Singh (2008) 8 SCC 485, Ashwin Kumar K. Patel vs. Upendra J. Patel & Ors. (1999) 3 SCC 161.
Per contra, learned counsel for respondent- defendant Mr. Mahesh Gupta supported the impugned judgment and submitted that since separate relief was claimed in both suits, therefore, learned lower Appellate Court rightly remanded the matter back to decide the same afresh.
I have considered the submissions made by learned counsels and perused the impugned judgments and available record.
In the matter of P. Purushottam Reddy And Another Vs. M/s. Pratap Steels Ltd. (supra) Hon'ble Supreme Court observed that-
" Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other 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 6 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 in as much 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 therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre- eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (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 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.
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 de hors the 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 11 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 7 back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided."
In the matter of Ashwin Kumar K. Patel vs. Upendra J. Patel & Ors. (supra), the Hon'ble Supreme Court again observed that-
"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 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. 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."
In the matter of Municipal Corporation, Hyderabad Vs. Sunder Singh (supra), the Hon'ble Supreme Court observed that-
"Para 19- A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI Rule 23 was therefore not available. On what 8 basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
20. Order XLI rule 23A of the code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI Rule 23 of the code.
An order of remand cannot be passed on ipse dixit of the court. The provisions of Order II Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & anr.(Civil Appeal No. 3495 of 2008) disposed of on 12.5.2008. "
Order 41 Rule 23 empowers the Appellate Court that where the Court from whose decree and 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.
In the case in hand, since both the suits have decreed after trial. Therefore, this provision is not applicable in the present case.
Rule 23 A of Order 41 CPC reads as under-
9Where the court from whose decree an appeal is referred 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.
Rule 25 of Order 41 CPC reads as under-
Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the 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 there for within such time as may be fixed by the Appellate Court or extended by it from time to time.
In the case in hand there is no allegation regarding ommitting to frame or to determine any question of fact which appear to the Trial Court essential to the right decision of the suit upon the merits. Therefore, this provision is also not applicable in the given situation. There are only aforesaid 3 Rules for remanding the case by the Appellate Court which are lacking in this matter. Therefore Rule 24 of Order 41 comes in picture which reads as under-
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 10 of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
From the perusal of impugned judgment of lower Appellate Court it is clear that the evidence on record is sufficient. The error pointed out by the lower Appelate Court is that Trial Court should have decide both the suits together, which he failed to decide in such situation. When both the appeals were lying before the Appellate Court and evidence upon the record was sufficient to enable the Appellate Court to pronounce the judgment. Learned lower Appellate Court after resettling the issues if necessary. Considering the evidence of both the suits should have decide the appeal.
In view of it, remanding the matter back was not warranted in this matter. Without following the provisions of Rule 24 Order 41 learned lower Appellate Court had wrongly remanded the matter back to the Trial Court, therefore, these appeals are allowed and impugned judgment of learned lower Appellate Court dated 21.04.2005 are quashed and set aside and learned lower Appellate Court is directed to decide the appeals itself, on merits.
Record of the Court below be returned forthwith with copy of the judgment. Both the parties are directed to appear before the learned Appellate Court i.e., Additional 11 District Judge No. 3, Kota, Rajasthan on 14th September, 2016.
Office is directed to ensure the reaching of record with copy of judgment before the lower Appellate Court before the aforesaid date.
[BANWARI LAL SHARMA], J.
Simple. 06-07