Calcutta High Court
Sri Tribhanga Bihari Bhanja And Ors. vs Sri Prahlad Chandra Tung And Ors. on 2 August, 2005
Equivalent citations: (2006)3CALLT415(HC)
JUDGMENT Arun Kumar Mitra, J.
1. A suit for partition being Title Suit No. 41 of 1963 brings about this Second Appeal. In the plaint the case which has been made out is in brief as follows:
The properties described in Schedule-Ka to the plaint originally belonged to two brothers Bipin Saha and Babulal Saha in equal shares. Bipin had five sons namely Suchand, Jyoti, Gadai. Sadai and Goti. Out of the five, first two pre-deceased him without keeping any issue. 'Kha' Schedule property is a part and parcel of the properties mentioned in the Schedule-'Ka' to the plaint. On 02.11.1936 Bipin made a gift of the 'Kha' Schedule properties to Chhoto Indubala. Wife of Sadai and Kamalabala, wife of Goti through a registered deed of gift. The donees obtained possession of the properties from the donor. Later on they sold some of the properties to Baro Indubala, wife of Gadai. Thereafter, Chhoto Indubala and Kamalabala sold some of those properties to the plaintiff No. 1 and 2 and put them in possession. The remaining half share of the 'Ka' Schedule properties belonged to Babulal Saha was inherited by his only son and heir Biswanath Saha. On 21.02.1938 Biswanath settled his share in respect of 'Ga' Schedule property with defendant Nos. 1 to 3 by means of a registered patta. It transpires that the said patta was also jointly executed by Gadai, Sadai and Goti, who had absolutely no interest in the property on account of prior gift made by Bipin Saha in favour of Chhoto Indubala and Kamalabala. The shares of the defendant Nos. 1 to 3 in 'Ga' Scheduled property cannot execeed eight annas and the remaining eight annals belonged-to the plaintiffs. In the revisional settlement record however, the entire 'Ga' schedule property has been recorded in the name of the defendants. The plaintiffs filed an objection under Section 44(2a) of the West Bengal Estates Acquisition Act for rectification of the Record of Rights but they became unsuccessful. The 1st defendant sold his share in the 'Ga' Schedule property to the 4th defendant while the 3rd defendant has sold his share to the 5th defendant by registered sale deeds. All these transfers, according to the plaintiffs are sham and collusive. The Revisional Settlement Records regarding the 'Ga' Schedule property in the name of the defendants are wrong and should be rectified. Joint possession with the defendants became inconvenient and so the plaintiffs requested them to get the property amicably partitioned but their request was not complied with as a result of which they have been compelled to bring the present action.
2. The defendant No.2 and defendant Nos. 4 and 5 contested the suit by filing two sets of written statements which are on the same lines. Their defence are that the deed of gift executed by Bipin Saha in favour of Chhoto Indubala and Kamalabala was a sham and collusive document. Bipin created this benami document for special reasons. The document however, was never acted upon and Bipin Saha remained in possession of the 'Kha' Scheduled properties till his death after which it was inherited by his three surviving sons Sadai, Gadai and Jyoti. Similarly, the sale deeds executed by the donee in favour of Baro Indubala as well as in favour of plaintiff Nos. 1 and 2 are sham, collusive and without consideration. Biswanath, along with Gadai and Sadai and Goti settled the suit lands with defendant Nos. 1 and 3 by a registered patta dated 21.02.1938. Although the patta stood in the name of defendant No. 1 alone, defendant Nos. 2 and 3 who are brothers of defendant No. 1 have each 1/3rd share in the land. The share of defendant Nos. 1 and 3 have been sold to defendant Nos. 4 and 5 respectively. Defendant Nos. 2, 4 and 5 are therefore, 16 annas owners of the suit land in which the plaintiffs have no interest at all. It is also alleged that the suit is not maintainable as the plaintiffs have prayed for partial partition.
3. On the above pleadings, the following issues were framed by the learned Trial Judge.
1) Have the plaintiffs in possession of any portion of the suit land? If no, is the suit for partition maintainable?
2) Is the suit bad for partial partition?
3) Is the deed of gift executed by Bipin Saha dated 16th Kartick, 1343 B.S. sham, collusive or a benami transaction?
3A) Are the kobalas executed by Chhoto Indubala and Kamalabala in favour of Baro Indubala, the plaintiff Nos. 1 and 2 respectively sham, collusive or benami documents?
4) Have the plaintiffs their alleged shares and possession in the suit land and are the plaintiffs entitled to a decree for partition?
5) To what relief, if any, are the plaintiffs entitled?
4. The learned Trial Judge on the basis of the said issues decreed the suit in preliminary form on contest against defendant Nos. 2, 4 and 5 and ex parte against the rest.
5. The learned Trial Judge declared that the plaintiffs have 8 annas share in the 'Ga' Schedule property and the remaining 8 annas share belonged to defendant Nos.2, 4 and 5 equally. The learned Trial Judge further declared that the entries in the R.S. Record of Rights regarding the suit property in the name of the defendant only are erroneous and not binding upon the plaintiffs.
6. The learned Trial Judge also passed an order that the plaintiffs and defendant Nos. 2, 4 and 5 are directed to amicably partition the suit property within two months from date, failing which the property shall be partitioned through Court by metes and bounds on the application of either party by the appointment of a Pleader Commissioner for the purpose.
7. The learned Trial Judge also directed that the Pleader Commissioner if and when appointed shall at the time of effecting partition consider the present possession and convenience of enjoyment of the property by the parties and in the event of partition through Court, the preliminary decree shall be made final on the basis of the report, field book, case map and allotment sheets prepared by the Commissioner and the cost of the final decree shall be borne by the parties in proportion to their respective shares declared above.
8. The defendants being aggrieved by and dissatisfied with the said Judgment and decree in Title Suit No. 41 of 1963 preferred appeal being Title Appeal No. 45 of 1967 and the learned Additional District Judge at Bankura on contest dismissed the appeal by Judgment and decree dated 29.09.1970 in Title Appeal No. 45 of 1967 and affirmed the Judgment and decree passed by the learned Trial Judge.
9. Hence this Second Appeal.
10. Before hearing this second appeal the substantial questions of law involved, if any, in the instant appeal is/or are to be framed. On consideration of the documents on record and the Judgments and decrees passed by both the Courts below the following questions are framed as substantial questions of law for the learned Counsel for both the parties to make their submissions restricted on the same.
11. Substantial Questions of law
1) Whether on the death of a respondent in a partition suit or its appeal the suit or the appeal will stand dismissed or abetted?
2) Whether the question of possession or the question of interpretation of the documents exhibited by the parties being tested at the touchstone of oral evidence, can again be interfered with in a second appeal.
3) Whether both the Courts below when laid down the foundation of the partition the High Court in a second appeal can interfere with the said foundation.
4) Whether the instant appeal arising out of the partition suit should be sent on remand or should be tried afresh on the basis of the application filed under Order 41, Rule 27 of the Code of Civil Procedure.
5) Whether after the preliminary decree being passed and affirmed by both the Courts below, the High Court can interfere with the same in a second appeal.
12. Both the learned Counsel made their submissions on the basis of the above formulated substantial questions of law.
13. The learned Counsel for the appellants submitted that in view of the death of the respondent during the pendency of the suit and/or the first appeal the appeal should have been dismissed because of absence of necessary party. The learned Counsel relied on the provisions of Order 22 Rule 4(A) of the Code of Civil Procedure and submitted that since the Court did not follow the said procedure a Judgment and decree passed in the appeal stand vitiated and both the Judgments and decrees should be set aside on this score. The learned Counsel relied on a decision reported in 1999 vol. (1) CLJ p.58 Sk Ladia v. Asamudding Ansari and Ors. The learned Counsel relied on the observations made in paragraph 15 of this Judgment which is quoted hereinbelow:
15. After hearing the learned Advocates for the parties and after going through the materials on record. I am at one with Mr. Ghosh that for not filing application for substitution of the heirs of the defendant No. 3, the entire appeal had abated and as such the finding of the learned first Appellate Court that the appeal did not abate as a whole cannot be supported. The decisions cited by Mr. Pal on this point have no application to the fact of the present case.
14. The learned Counsel for the appellants then submitted that documents being exbts. 1, 2 and 2(a) being the deed of gifts executed in favour of Baro Indubala and the plaintiffs 1 and 2 are sham, collusive and these deeds were not acted upon. The learned Counsel submitted that both the Courts below went on wrong by observing that those documents are genuine.
15. The learned Counsel also submitted that the donee did not get the custody of the deed of gift during life time of the owner and the Courts below should not have declared those documents to be genuine and exbts. "a" and "a-1" are aperting to be fraudulent/documents on the face of it.
16. The learned Counsel further submitted that the Courts below relied only on PW 3's evidence and decided the partition suit. The learned Counsel also submitted that issue Nos. 1 and 4 were not decided at all by the Courts.
17. The learned Counsel submitted that in the instant case no arrangement was made for payment of owelty money accrued out of the partition of the property. The learned Counsel in this regard relied on the decision .S. Swaminatha Odayar v. Official Receiver of West Tanjore. The learned Counsel relied on the observations of the Hon'ble Apex Court in paragraph 14 of this Judgment which is quoted hereinbelow:
14. It must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant No.3 and the appellant were coparceners. While effecting such a partition it would not be possible to divide the properties by metes and bounds, there being of necessity an allocation of properties of unequal values amongst the members at the joint family. Properties of a larger value might go to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values; by providing for the payment by the former to the latter by way of equalization of their shares. This position has been recognized in law and a provision for such payment is termed "a provision for owelty or equality of partition. The following passage from Story on Equity Third Edition) page 277, para.654 describes what happens on a partition:
In regard to partitions there was also another distinct ground upon which the jurisdiction of Courts of equity was maintainable, as it constituted a part of its appropriate and peculiar remedial justice. It is, that Courts of equity were not restrained, as Courts of law were, to a mere partition or allotment of the lands and other real estate between the parties according to their respective interests in the same, and having regard to the true value thereof: but Courts of equity might, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or equality of partition so as to prevent any injustice or avoidable inequality.
18. The learned Counsel submitted that in a partition suit it is not physically possible to demarcate in exact, the shares of the parties to the partition and as such the arrangement for payment of owelty money must be there and in the instant case both the Courts below did not arrange for owelty money and as such both the Judgments and decrees passed by the Courts below are vitiated and are liable to be set aside.
19. The learned Counsel for the appellants further submitted that an application for consideration of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure has been filed before this second Appellate Court and this second Appellate Court should consider the said application and take decisions on the said application and also take into consideration the facts made out in the said application under Order XLI Rule 27 of the Code of Civil Procedure.
20. According to the learned counsel, the second Appellate Court will commit wrong if the additional evidence are not considered.
21. The learned Counsel lastly submitted that at this stage before finalization of the preliminary decree the Courts should have considered the evidenciary aspect or the evidence adduced in the suit and then an proper appreciation of evidence the Courts should have finalized the preliminary decree.
22. The learned Counsel for the appellants submits that both the Judgments and decrees passed by the Courts below should be set aside.
23. The learned Counsel for the respondents submitted that on the death of any respondent the suit does not fail and/or does not stand dismissed or abated the suit is only abated in respect of that deceased respondent.
24. The learned Counsel for the respondents submitted that three documents exbt. 1, 2 and 2(a) have been tested on evidence and both the Courts below found them genuine and also found the possession of the respective parties. Since the Courts below in their concurrent finding decided on evidence the documents to be genuine and also decided the question of possession in the second appeal under Section 100 of the Code of Civil Procedure, this Court cannot interfere with the said findings.
25. The learned Counsel for the respondents then submitted that considering the entire evidence on record and the documents exhibited therein both the Courts below came to a conclusive finding or laid down the foundation of a preliminary decree and this Court under Section 100 of the Code of Civil Procedure cannot interfere with the same.
26. The learned Counsel for the respondents submitted that in any event the Court should not send the appeal back for fresh trial on the basis of application under Order XLI Rule 27 of the Code of Civil Procedure.
27. The learned Counsel for the respondents submitted that after the preliminary decree is finalized the Court cannot again interfere with the same in a second appeal unless it appears from the records that the shares have become unequal.
Decision:
28. Heard the learned Counsel for the parties and considered their respective submissions and also considered the Judgments and decrees passed by both the Courts below.
29. Let me consider first as to what would be the position of the suit or the appeal on the death of any defendant or respondent. In this context the provisions of Order 22 Rule 4 Sub-rule 4 and Order 22 Rule 4(A) are quoted hereinbelow:
4. Procedure in case of death of one of several defendants or of sole defendant.(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who having filed it, has failed to appear and contest the suit at the hearing; and Judgment may in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where-
(a) the plaintiff was ignorant of the death of a defendant and could not for that reason make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act 1963 (36 of 1963), and the suit has, in consequence abated and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.
(4). If a decree has been passed against a deceased, defendant a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit.
(5) Before setting aside the decree under Sub-rule (4) the Court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit.
(6) The provisions of Section 5 of the Limitation Act, 1963 shall apply to applications under Sub-rule(4).(11.4.1975).
4-A. Procedure where there is no legal representative.(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any Judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court-
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to be represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.
30. It would be clear from the above provisions that a suit or an appeal does not fail on the death of one respondent/defendant. The decision reterred to by the learned Counsel for the appellants in the case of Sk. Ladla (supra) is on the different context. In the said case it was a suit for eviction of a tenant and the defendant died and no application for substitution of the heirs was filed and consequently,, his Lordship observed that the entire suit stood abated. In the instant case which is a partition suit, death of one of the respondents does not bring about abatement of the entire suit or entail dismissal of the suit. In this context reference may be drawn to the decision Dalla v. State of U.P. and Ors. Mainly the observations made by the Hon'ble Division Bench of Allahabad High Court in the said Judgment in paragraph 8, which is quoted hereinbelow can be relied upon.
8. The question as to the consequences of the death of one party has been dealt with by the Supreme Court in State of Punjab v. Nathu Ram . It was held that when a party to a litigation dies and his heirs are not substituted, the proceedings abate as against him. It was observed that the Code does not provide for the abatement of appeal against other respondents and so there can be no question of the abatement of the appeal against them. To say that the appeal against them abated in certain circumstances, is not a correct statement. Of course the appeal against them cannot proceed in certain circumstances and has, therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. The same conclusion is to be drawn from the provisions of Order 1, Rule 9 of the Code which provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court ruled:
It follows therefore that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters that it will have to refused to proceed further with the appeal, are therefore, dismiss it.
31. The Court went on to illustrate the situations when it may not be possible for the Court to proceed, for instance, when the success of the appeal would bring into existence contradictory decrees or in a case where the appellant could not have brought a suit for the necessary relief against those respondents alone who are still before the Court and, thirdly, whether the decree against the surviving respondents is ineffective, i.e., could not be successful. Applying these principles, it is clear that neither of the three kinds of cases contemplated by the Supreme Court Judgment are present. There is no finding in respect of defendants 3 to 5. The finding is that defendants 1 and 2 were within their rights in constructing their drain. It is this finding that the plaintiff is challenging in second appeal. On the facts it is clear that defendants 3 to 5 were not necessary parties to the present litigation. The plaintiff would have got the relief against defendants 1 and 2, if he had confined the relief to them alone on the same allegations. It is, therefore, clear that the subject-matter of the second appeal in this Court was confined, in law, between the plaintiff on the one hand and the defendants 1 and 2 on the other. In this situation, even though the appeal before the lower Appellate Court against defendant No. 3 may have abated, yet the second appeal in this Court cannot fail for that reason in its entirety. The impleadment of Chajju. as respondent No. 3, was improper because he was already dead. His name has to be scored out from the array of parties. The appeal can validly proceed against the other defendants-respondents.
32. Now, let me see as to whether or how far the argument advanced by the learned Counsel for the parties that the Courts below should not have held the documents being exbt. 1, 2 and 3 to be genuine. The learned Trial Judge in its finding observed as follows:
The first defendant (D.W. 1) has said in his cross-examination that he was not present when the impugned documents (Exts. 1, 2 and 2A) were executed. He has not seen the documents either and does not know the circumstances under which they were executed. He has also been constrained to admit that he has no personal knowledge as to the real nature of the documents and says by guess that they are sham and collusive. Plaintiffs have examined Kamalabata (P.W. 3) one of the donees whose sworn testimony is that Bipin Saha was a man of means and had extensive landed properties. During his life time he expressed his desire on one or two occasions to make a gift of ,some properties to them. One day he came home with the deed of gift and told them that he had completed the gift. After this, he handed over the deed to Chhoto Indubala and then showed the gifted properties to the donees. This evidence has remained unshaken.
33. The learned Trial Judge on detailed discussions in various cases in its Judgment observed that the documents being exbts. 1, 2 and 2(A) are genuine and the learned Trial Judge could not find out any evidence against the said factual position. The learned Trial Court below also discussed the entire evidence adduced before the Trial Court and came to the conclusion that three documents are genuine.
34. In view of such concurrent finding, this Court in a second appeal under Section 100 can't interfere with the said finding as to the genuinity of the documents and as to the possession of the party.
35. On consideration of the Judgments and decrees passed by the Trial Court first it appears that the learned Trial Judge on consideration of the entire evidence on record came to the finding that the plaintiffs have 8 annas share in 'Ga' Schedule property and the remaining 8 annas share belongs to defendant Nos. 2, 4 and 5 equally. The Appellate Court below also affirmed this finding of the Trial Court. In such a situation both the Courts below in fact laid down the foundation of the partition and this Court under Section 100 can't or shouldn't interfere in the said concurrent finding or shouldn't disturb the finding which is based on appreciation of evidence on record and at cost of repetition it can be safely observed that under Section 100 the Court should not interfere with such a concurrent finding.
36. Insofar as consideration of additional evidence is concerned let me quote the provisions of Order 41 Rule 27 of the Code of Civil Procedure first.
27. Production of additional evidence in Appellate Court.(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if-
(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
37. The pre-conditions of invoking the provisions of Order XLI Rule 27, let me see whether are existing herein this case.
38. The Court from whose decree the appeal is preferred has not refused to admit evidence. The party or the appellants herein seeking to produce additional evidence could not establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree was passed.
39. The Appellate Court also do not require the documents so advanced by the appellants to be produced or witness to be examined afresh to enable the Court to pronounce its Judgment. Therefore, all the pre-conditions for invoking the provisions of Order XLI Rule 27 are absent here. In this context the Judgment of the Hon'ble Apex Court . The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. may be referred to. Mainly the observations made in paragraph 9 of this Judgment can be laid emphasis which also quoted hereinbelow:
9. The High Court was quite alive to the requirement of law that a party should not be allowed to make out a new case by way of an amendment to the pleading. Dealing with this matter the High Court has observed:
This brings us to the course which we must adopt in the present case and the amendment application. In the plaint, the plaintiff alleged that the order was mala fide and that it was obtained for collateral purposes.
40. The learned Judges were not correct in observing that it was the plaintiffs case in the plaint that the landlords had obtained the clearance order or that the Corporation had made order for a collateral purpose. This impression of the High Court seems to be the basis of the rather curious procedure which it chose to follow in this case. Then the High Court referred to the fact that no evidence whatsoever had been led by the plaintiffs before the City Civil Court the effect that the order was passed fraudulently or for a collateral purpose. It was alive to the fact that in such a case a party should not be allowed to adduce fresh evidence at the appellate stage and much less so at the stage of letters patent appeal. Then it observed:
If the case had rested thus the matter would have been very simple apart from the amendment application. It seems to us however, that it is not possible to dispose of this case satisfactorily on the material on record. There are some documents on record which if unexplained support in a large measure the contention of the plaintiffs that defendants 2, 3 and 4 obtained the order by fraud and also that the order was mala fide.
41. If the High Court, in making these observations was referring to the provisions of Order XLI, Rule 27, Code of Civil Procedure it ought not to have overlooked the mandatory provisions of Clause (b) of Sub-rule (1) of Rule 27. No doubt under Rule 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce Judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce Judgment in a case. It does not entitle the Appellate Court to let in a fresh evidence only for the purpose of pronouncing Judgment in a particular way. In other words it is only for removing a lacunae in the evidence that the Appellate Court is empowered to admit additional evidence. The High Court does not say that there is any such lacunae in this case. On the other hand what it says is that certain documentary evidence on record supports "in a large measure" the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under Clause (b) of Sub-rule (1) or Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the Court could well proceed to consider them and decide the issue. The observations of the High Court that certain documents would support the plaintiffs' contention of fraud only if they were not explained would show that according to it they furnish a prima facie evidence of fraud. There is nothing to show that the defendants or any of them wanted to be afforded an opportunity for explaining the documents. It would further appear that it was not merely for the limited purpose of affording the defendants an opportunity to explain the documents that the High Court remitted the case to the City Civil Court. For, in the concluding portion of its Judgment the High Court has directed as follows:
In the result we remit the case to the City Civil Court for receiving additional evidence as directed by us in the Judgment and also to allow evidence on the amendment. We direct that the defendants do file their written statement within three weeks from today, or at such earlier time as they can in answer to the amendment permitted to be made. Discovery and inspection forthwith within a week thereafter. And after this formality is over, the case to be on the Board for final hearing for taking evidence on the issue of mala fide and the issues that arise on the amended pleadings between the parties....
42. This clearly shows that what the High Court has in substance doen is to order a fresh trial. Such a course is not permissible under Order XLI, Rule 27, Code of Civil Procedure. The High Court has quite clearly not proceeded under Order XLI, Rule 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit. For, the High Court has not indicated which issue was not tried by the Trial Court. If the High Court meant that the necessary issue had not been raised by the Trial Court though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the Trial Court on any preliminary point and, therefore, a general remand such as is permissible under Rule 23 could not be ordered.
43. In the above perspective it can be safely said that in the instant appeal there is no scope for remanding it for fresh trial.
44. It is now to be decided as to whether after the preliminary decree is passed the second Appellate Court should interfere in the said preliminary decree. Reference may be drawn to the Judgment of this High Court Tarapada Ray v. Shyama Pada Ray and Ors. The observations made in paragraph 6 of this Judgment makes it clear that once a preliminary decree is passed by a Court, it has no jurisdiction to deviate from the same subsequently. For convenience of discussions the aforementioned paragraph is quoted hereinbelow:
6. It is incontestable that once a preliminary decree is passed by a Court it has no jurisdiction either to pass an order dismissing the suit or to record that the suit has abated as the heirs of one or more of the original and necessary parties had not been substituted within the statutory period. Lachminaraih v. Balmakund 51 Ind App 321. Their Lordships observed:
After a decree has once been made in a suit, the suit could not be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can as already stated apply to have it enforced. (page 325).
45. In view of the discussions made above all the substantial questions are decided against the appellants, and the appeal therefore, fails and is dismissed.
46. The parties are to bear theif own costs. The decree may be drawn up accordingly.
Let the lower Court records be sent down to the Courts below forthwith.
Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.