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2001 DIGILAW 447 (CAL)

Gobordhan Mahato v. Dinabandhu Mahato

2001-07-25

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J.: This is an appeal by the plaintiffs against an order of remand passed by the lower appellate court remanding the suit back to the learned trial Judge for fresh trial. 2. Title Suit No. 152 of 1976 was instituted by the plaintiffs in the court of the learned Subordinate Judge, Bankura, which was eventually transferred to the court of the learned Assistant District Judge, Additional Court at Bankura, District: Bankura and was renumbered as Title Suit No. 13 of 1986 in the said court. The suit was for partition alleging that the plaintiffs have 5 annas, 6 gandas, 2 karas and 2 kranti share in respect of suit properties. 3. The said suit was contested by the defendant Nos. 1, 2 and 3 contending inter alia, that the plaintiffs were never the co-sharers in respect of suit properties and as such the suit was liable to be dismissed. 4. The defendant No. 19, that is, the State of West Bengal, also, contested the suit by filing a written statement. 5. By judgement and decree dated June 26, 1986 the learned Assistant District Judge, Additional Court at Bankura decreed the suit in preliminary form and declared the plaintiffs' 5 annas, 6 gandas, 2 karas and 2 kranti share in the suit properties. The parties were directed to effect amicable partition by metes and bounds within a period of three months from the date of the decree, failing which, liberty was granted to any of the parties to get the suit properties partitioned through the process of the court. 6. The defendant Nos. 1,2 and 3 challenged the decree in the court of the learned District Judge, Bankura and the appeal was registered as Title Appeal No. 63 of 1989. The appeal was eventually transferred to the court of the learned Additional District Judge, First Court at Bankura, District: Bankura. 7. In the appeal court the appellants filed two documents: (a) a registered deed of sale executed by Sripat Chowdhury in favour of Keshab Chandra Mahato dated October 16, 1936; (b) a notice of sale proclamation in connection with a rent suit of the year 1917 against Giribala and Khentamoni. 8. 7. In the appeal court the appellants filed two documents: (a) a registered deed of sale executed by Sripat Chowdhury in favour of Keshab Chandra Mahato dated October 16, 1936; (b) a notice of sale proclamation in connection with a rent suit of the year 1917 against Giribala and Khentamoni. 8. The learned Additional District Judge took notice of the aforesaid two documents and held that those two documents would definitely act as rebutting evidence against the entries in the C.S. Khatian and would help the court in arriving at a just decision regarding the rival claims of the parties. 9. However, the learned Additional District Judge held that it was a fit case for remand. The learned Additional District Judge observed: "I could have disposed of the suit on the basis of these two documents after admitting them as additional evidence but I think it expedient in the interest of justice to afford the plaintiff respondents an opportunity of adducing further evidence and of explaining the documents filed by the opposite parties. I, therefore, hold that it is a fit case of remand. The learned court below shall admit these two documents into evidence and will allow the parties to adduce further evidence and then on the basis of the additional evidences coupled with the evidence already on record shall proceed to dispose of this suit in accordance with law and write a fresh judgement in the light of the discussions made above." 10. Being aggrieved the plaintiffs have come up with this appeal. 11. It has been held in the case of Rushi and Anr. vs. Madan Behara and Anr., reported in AIR 1986 Orissa 207 "the appellate court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be remembered that early conclusion of a 'lis' on merit is the public policy. In the name of ' ends of justice' or 'proper adjudication' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. It should be remembered that early conclusion of a 'lis' on merit is the public policy. In the name of ' ends of justice' or 'proper adjudication' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. I may not be understood to express that the appellate court has no power to remand on the facts of this case. It should have first assessed the evidence and dealt with the finding and then given the reason why it would not be in a apposition to give a finding. In that case only an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the Court. Merely because a power is vested, the appellate court is not to exercise it as it desires." 12. It has, also, been held in the case of Mannu Naicker and Ors. vs. Kalaimani and Ors., reported in 1987 (2) Madras Law Journal 240 that generally speaking only where it is not possible to apply Order 41, Rules 24 to 27 of the Code of Civil Procedure a remand should be resorted to under Order 41, Rule 23 of the Code of Civil Procedure. It should be noted further that before remanding the case, Order 41, Rule 23 itself contemplates that the appellate Court should reverse or set aside the decree. Reading the Rules together, this provision will not apply to a case where the trial court has considered the entire evidence, but in the opinion of the appellate Court a different view' ought to be taken of the evidence and the appellate Court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate Court to consider the matter as it stands and give its own finding in reversal of finding of the trial Court. But that would not justify a remand. The provisions of Order 41, Rule 27 of the Code of Civil Procedure should be strictly complied with by the Appellate Court. 13. I am not impressed by the reasons given by the lower appellate court for remanding the matter to the learned trial Judge. But that would not justify a remand. The provisions of Order 41, Rule 27 of the Code of Civil Procedure should be strictly complied with by the Appellate Court. 13. I am not impressed by the reasons given by the lower appellate court for remanding the matter to the learned trial Judge. Power of remand is vested in the appellate court under Rules 23,23A and 25 of the Order 41 of the Code of Civil Procedure. In the case in hand, undisputedly Rule 23 is not applicable, as the learned trial Judge has not decided the suit on a preliminary issue. The considerations would have been different if remand would have been directed under Rule 25 as under Rule 25 the appeal shall be kept pending and an issue is sent back on remand to the learned trial Judge for taking additional evidence required and for returning the evidence to the appellate court together with the findings thereon and the reasons therefor. This is, however, a case of open remand under Order 41, Rule 23A of the Code of Civil Procedure. In my view, Order 41, Rule 23A of the Code of Civil Procedure should be sparingly used as it is the public policy that a litigation is to be concluded finally as early as possible. Where, of course, remand is felt necessary after judicial consideration and when Rule 25 of Order 41 of the Code of Civil Procedure is not considered to be adequate, the appellate court may consider the question of an open remand. 14. The learned trial Judge has considered the entire evidence and decreed the suit with a finding on the evidence already on record. In such a case it is the public duty of the appellate court to consider the matter as it stands and to give its own findings in reversal of findings of the trial court. The appellate court should strictly comply with the provisions of Order 41, Rule 27 of the Code of Civil Procedure. 15. So, the impugned order of remand passed by the lower appellate court is not necessary and as such is not sustainable in the eye of law. 16. I, therefore, allow the appeal, set aside the order of remand and remit the Title Appeal No. 63 of 1989 back to the lower appellate court. 15. So, the impugned order of remand passed by the lower appellate court is not necessary and as such is not sustainable in the eye of law. 16. I, therefore, allow the appeal, set aside the order of remand and remit the Title Appeal No. 63 of 1989 back to the lower appellate court. The learned Additional District Judge is directed to admit the additional evidence produced on behalf of the contesting defendants and, thereafter, will give opportunity to the plaintiffs to adduce evidence in rebuttal, but not evidence in further support of their case. The learned Judge in the lower appellate court is directed to record oral evidence, if necessary, himself without remanding the case to the learned trial Judge and shall dispose of the appeal on merits expeditiously. 17. There will be no order as to costs. 18. Let xerox certified copy of this judgement, if applied for, be supplied to the applicants on urgent basis. Appeal allowed.