Punjab-Haryana High Court
Kulwant Singh vs Jagtar Singh & Ors on 3 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
vinod kumar
2014.09.05 15:41
I attest to the accuracy and
integrity of this document
Chandigarh
SAO No.42 of 2014 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SAO No.42 of 2014 (O&M)
Date of decision: 03.09.2014
Kulwant Singh ...Petitioner
Versus
Jagtar Singh and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Ram Lal Gupta, Advocate,
for the petitioner.
Mr. S.C.Chhabra, and Mr. J.S. Khiva Advocate,
for the respondents.
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RAKESH KUMAR JAIN, J.
This appeal is filed assailing the order dated 13.05.2014 passed by the Appellate Court by which judgment and decree of the Trial Court has been set aside and the case has been remanded back to the Trial Court with the direction to re-admit the suit under its original number and to retry/ re-decide the case as per the evidence on record. It has been further directed to record its clear and specific finding on each issue, provide opportunity of being heard to both the sides and if any party requests for providing it opportunity to lead some more evidence, then it should also be considered by the Trial Court.
The brief facts of the case are that the plaintiff filed a suit for possession by way of specific performance of the agreement to sell dated vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [2] ***** 30.12.2005 and in the alternative, recovery of `14,00,000/- including damages of `3,50,000/- along with future interest at the rate of 12% per annum till its realization from defendant no.1. The plaintiff has averred that defendant no.1, being owner in possession of the suit land measuring 4 kanals, entered into the agreement with him on 30.12.2005 for `28,00,000/- per acre after receiving a sum of `10,50,000/- as earnest money and the sale deed was agreed to be executed and registered within four months after the sanctioning of mutation in favour of the vendor. The mutation no.20689 was sanctioned in favour of defendant no.1 on 15.06.2007, but it was found by the plaintiff that he was bent upon to alienate the suit land to some other person due to hike in prices. The plaintiff thus filed Civil Suit No.167 dated 14.08.2007 for permanent injunction restraining him from alienating the suit land. However, the said suit was withdrawn by him on 16.03.2009 for filing the suit for specific performance. It was further averred that defendant no.1, in connivance with defendant no.2-appellant, prepared another alleged agreement to sell dated 14.06.2007 to defeat the rights of the plaintiff. Defendant no.2-appellant filed a suit against defendant no.1 for specific performance of the agreement to sell on 23.08.2007 which was decided on 18.07.2009 without impleading the plaintiff as a party. On the basis of the decree in that suit, the sale deed bearing Vasika No.1824 dated 31.12.2009 was also got executed in favour of defendant no.2-appellant and mutation No.23555 dated 11.01.2010 was also sanctioned in favour of defendant no.2-appellant on the basis of the said sale deed. Defendant no.2-appellant filed an application on 17.08.2009 vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [3] ***** under Order 1 Rule 10 of the CPC to become a party to the suit, then the plaintiff came to know about the alleged agreement to sell dated 14.06.2007 and judgment dated 18.07.2009. It was alleged that the plaintiff requested the defendants to execute and register the sale deed in his favour as per agreement to sell dated 30.12.2005, but they flatly refused to it and hence, the present suit was filed.
Defendant no.1 did not appear and was proceeded against ex- parte on 15.04.2009, whereas defendant no.2, who is the present appellant, filed an application for impleading him as a party which was allowed on 06.01.2010. In the written statement, defendant no.2-appellant alleged that the plaintiff has filed the suit in connivance with defendant no.1 Jagtar Singh by preparing an antedated agreement to sell dated 30.12.2005. It was also averred that he had become owner of the property in dispute by way of sale deed dated 31.12.2009 and is a bona fide purchaser for valuable consideration without notice.
On 10.12.2011, on the application moved by the plaintiff, the legal heirs of defendant no.1 were impleaded as parties. After their impleadment, they put in appearance and filed written statement and contested the suit of the plaintiff. After the pleadings were over, the following issues were framed by the learned Trial Court:-
"1. Whether defendant No.1 executed an agreement to sell dated 30.12.2005 for the sale of suit land in favour of the plaintiff?OPP.
2. Whether plaintiff was always ready and willing and he is vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [4] ***** still ready and willing to perform his part of contract?OPP.
3. Whether alleged judgment and decree dated 18.07.2009 passed in civil suit No.175 dated 23.08.2007 regarding specific performance to agreement to sell dated 14.06.2007 filed by defendant No.2 against defendant No.1 are wrong, illegal, null and void and has no effect on the rights of the plaintiff?OPP.
4. Whether the sale deed bearing Vasika No.1824 dated 31.12.2009 executed in favour of defendant No.2 is also wrong, illegal, null and void and has no effect on the plaintiff?OPP.
5. Whether mutation No.23555 dated 11.01.2010 sanctioned in favour of defendant No.2 on the basis of sale deed dated 31.12.2009 is also wrong, illegal, null and void and has no effect on rights of the plaintiff?OPD.
6. Whether the plaintiff is entitled to get relief of specific performance of agreement to sell dated 30.12.2005 or in alternative relief of recovery of Rs.14,00,000/- including damages of Rs.3,50,000/- along with future interest at the rate of 12% per annum till its realization from the defendant No.1?OPP.
7. Whether the alleged agreement to sell is forged and vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [5] ***** fabricated documents and without consideration?OPD.
8. Whether defendant NO.2 is bona fide purchaser for valuable consideration and without notice?OPD.
9. Whether plaintiff is estopped from filing the present suit by his own act and conduct?OPD.
10. Whether the suit of the plaintiff is not maintainable in the present form?OPD.
11. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD.
12. Whether the suit of the plaintiff is within the period of limitation?OPP.
13. Relief."
The Trial Court discussed issues no.1 to 7 together, but decided issues no.1 to 5 against the plaintiff and issue no.6 partly in favour of the plaintiff. There was no decision on issue no.7 by the Trial Court. In the end, the suit of the plaintiff was partly decreed for recovery of the earnest money only.
Aggrieved against the judgment and decree of the Trial Court, two appeals were filed; one by the plaintiff bearing CAD No.38 dated 01.05.2012 and another by the legal heirs of defendant no.1 bearing CAD No.39 dated 01.05.2012. Both the appeals were clubbed together and decided by the lower Appellate Court, observing in para 15 of the judgment that "I have taken into consideration the submissions of both the parties on this short question, as to whether non-returning of finding on a particular vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [6] ***** issue or non-deciding of issues as per the discussion in the judgment of the learned lower Court would cause any prejudice or mis-carriage of justice".
It was observed that the Trial Court had taken up issues no.1 to 7 together in order to avoid repetition and discussion of evidence, but failed to give a specific finding on issue no.7. It was also observed by the lower Appellate Court that under Order 20 Rule 5 of the CPC, the Trial Court is to state its decision on each issue. It was also observed that issue no.7 is a vital issue and its finding would have bearing on the decision of the case. In these circumstances, the impugned order was passed while remanding the case.
Learned counsel for the appellant has argued that the lower Appellate Court has erred in exercising its jurisdiction in setting aside the judgment and decree of the Trial Court on account of the fact that one issue was left undecided and opened the entire case for the parties, giving them opportunity as well, against the spirit of Order 41 Rule 23 of the CPC. It is submitted that the Appellate Court should not have remanded the case for a fresh trial without setting aside the findings of the Trial Court on all the issues and should have decided the issue left undecided by the Trial Court or should have called for the report of the Trial Court on the said issue. In support of his submissions, he has relied upon the following judgments:-
i) Suraj Bhan v. Gram Panchayat Juppa Khurd, 2002 (1) PLR 248;
ii) Jai Narain and others v. Boda Ram alias Bod Raj, 2007(2) RCR (Civil) 711;vinod kumar
2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [7]
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iii) Jagdish Ram v. Tirath Ram (deceased by L.R.), AIR 1983 P&H 426;
iv) Shmt. Dhapan v. Vijay Singh and others, 1980 PLR 211;
v) Rajpal Singh and others v. Nasib Singh, 2003(3) PLR 556;
vi) Shahab-ud-din v. Radhey Shyam Bansal and others, 2000(2) PLR 85;
vii) Onkar Singh and another v. Karnail Singh and others, 2008(3) PLR 67; and
viii) Harikishan v. Smt. Anandi, 2007(1) PLR 469.
On the other hand, learned counsel for the respondents has relied upon order passed by this Court in the case of Gurnam Kaur and others v. Girdhari Lal and others, SAO No.85 of 2011 decided on 28.04.2014.
I have heard learned counsel for the parties and perused the record with their able assistance.
Power of remand is provided to the lower Appellate Court in Order 41 Rules 23 & 23A of the CPC, which are reproduced as under for the ready reference:-
"23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [8] ***** it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried on the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand."
"23A. Remand in other cases.-- Where the Court from whose decree an appeal is preferred 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."
Order 41 Rule 23 of the CPC talks of a suit which is disposed of upon a preliminary point and the decree is reversed in appeal. The Appellate Court may, if thinks fit, remand the case and further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand, whereas Rule 23A deals with the vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [9] ***** situation where the Court from whose decree an appeal is preferred 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 case can be remanded and rest of the powers would be exercised by the Court as provided under Order 41 Rule 23 of the CPC.
In the present case, the only issue before the lower Appellate Court is that the Trial Court had not decided issue no.7 which was to be proved by the defendant as to whether the alleged agreement to sell was forged and fabricated and without consideration. Naturally, the issue no.7 was on the averments made by defendant no.2-appellant who had alleged that the agreement in favour of the plaintiff was an antedated document. The lower Appellate Court, while disposing of the appeals, had only taken into consideration this fact that finding on issue no.7 is vital and did not touch the finding recorded by the Trial Court on the other issues.
In these circumstances, the question would be as to whether the Trial Court has rightly remanded the case back for fresh trial without setting aside the finding on all other issues when there was no finding on one of the issues framed by the learned Trial Court. This question would be answered with the aid of judgment relied upon by learned counsel for the appellant in Suraj Bhan's case (supra) in which this Court has held that if one of the issues is not decided by the Trial Court, the lower Appellate Court could not have remanded the case back without setting aside the finding recorded by the Trial Court on all other issues.
Similar view has been expressed in Jagdish Ram's case vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [ 10 ] ***** (supra) wherein suit for possession was decreed in favour of the defendant and the lower Appellate Court remanded the case on the objection of the respondent that the appeal was not properly valued for the purpose of court fee and jurisdiction. It was held by this Court that the matter could have been decided by the Appellate Court either by himself or by sending for the report of the trial Court under Order 41 Rule 23 of the CPC, but unless he came to the conclusion that the judgment of the Trial Court was liable to be set aside on merits, he could have not accepted the appeal and remanded the case.
In Shmt. Dhapan's case (supra), it was held by this Court that if the decree is reversed in appeal and if retrial is considered necessary, only then the powers under Order 41 Rule 23 are to be exercised as it does not authorize the Appellate Court 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 is to be considered and is to be set aside before the decree as such could be reversed in appeal and without doing the same, there are no powers with the Appellate Court to reverse the decree in appeal.
Similarly, in Rajpal Singh's case (supra), this Court has held that the scope of Order 41 Rule 23-A is very limited and if retrial is considered necessary, only then the power of remand is to be exercised by the Appellate Court, but the said Rule does not authorize 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 vinod kumar 2014.09.05 15:41 I attest to the accuracy and integrity of this document Chandigarh SAO No.42 of 2014 (O&M) [ 11 ] ***** findings given by the Trial 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.
Similar view has been expressed by this Court in Shahab-ud- din's case (supra) wherein it has been held that Order 41 Rule 23-A of the CPC would show that the remand is not a matter of course and unless the Appellate Court reaches a conclusion that findings on an issue are not sustainable and the matter requires re-trial, the case cannot be remanded without reversing the findings of the Trial Court.
Insofar as the judgment in Gurnam Kaur's case (supra) is concerned, in that case, this court had only discussed the provisions of Order 20 Rule 5 of the CPC which provides that the Trial Court is to decide all the issues and the issue involved in the present case is not involved in that case.
Thus, in view of the aforesaid discussion, the present appeal is allowed and the order of the lower Appellate Court dated 13.05.2014 is set aside being illegal, with liberty to the Appellate Court to exercise its powers under Order 41 Rule 25 CPC for seeking a report of the Trial Court on issue no.7, which is left out to be decided by the Trial Court, within the time frame as it may deem fit.
September 03, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE