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2002 DIGILAW 201 (HP)

Parma Nand v. Arvind Diwan

2002-07-15

CHAND SOOD, KAMLESH SHARMA

body2002
JUDGMENT Per Kuldip Chand Sood, J. (Oral):- This appeal is directed against the orders of remand made by learned District Judge, Shimla dated 23.11.2001 2. In order to appreciate the controversy, few facts may be noticed: 3. Plaintiff-respondent Arvind Diwan is admittedly owner in possession of the land comprised in Khasra No. 674/1 measuring 5 biswas whereas plaintiff-respondent Smt. Kusum Diwan is owner in possession of the land comprised in Khasra No. 674/2 measuring 4 biswas. The land was purchased jointly by the plaintiffs from one Laxmi Singh by a registered sale deed on 11th September, 1990.The plaintiffs are constructing their residential houses on their respective lands and also living therein. The defendant is owner of the adjacent plot to the extent of half share which is comprised in Khasra No. 675 in Mauja Mehli, Tehsil and Distt. Shimla defendant has constructed his house on the front portion of Khasra No. 675 and is living in that house. 4. It was the case of the plaintiffs that the defendant adopted hostile attitude towards them ever since they started living in their houses. It was further case of the plaintiffs that when they shifted to their houses they discovered that the defendant was growing vegetables on the part of their land comprised in Khasra No. 674. He continued growing vegetables in spite of protest of the plaintiffs. The plaintiffs, to avoid any controversy with the defendant, raised a boundary wall about four feet in height. It is the further case of the plaintiffs that by a mistake they raised the boundary wall within their own land to the extent of five feet. They discovered it when they obtained a private demarcation of their land from a revenue officer. The defendant taking advantage of the construction of boundary wall threatened to construct steps on the land of the plaintiffs. 5. It was in this backdrop the plaintiffs filed a suit against the defendant praying for a restrain on the defendant from encroaching and trespassing on any part of the land of the plaintiffs comprised in Khasra Nos. 674/1 and 674/2 measuring 9 biswas and further restrain from constructing steps against the boundary wall of the plaintiffs or raising a ledge (Chajja) over the land of the plaintiffs. 6. The defendant in his written statement controverted the allegations. 674/1 and 674/2 measuring 9 biswas and further restrain from constructing steps against the boundary wall of the plaintiffs or raising a ledge (Chajja) over the land of the plaintiffs. 6. The defendant in his written statement controverted the allegations. The ownership and possession of the plaintiffs over the land comprised in Khasra Nos 674/1 and 674/2 was not disputed. It was submitted that the defendant had no concern with the land comprised in Khasra No. 674/1 or Khasra No. 674/2. The defendant maintained that he is owner in possession of 6 biswas of land comprised in Khasra No. 675 since the year 1990. The defendant constructed his first floor of the house in the year 1995 and has now raised second story. The defendant denies allegation of trespass. He also denies any encroachment on the land of the plaintiffs. According to the defendant, he is raising construction outside the brick boundary wall raised by the plaintiffs. 7. The learned trial court settled several issues and ultimately by its judgment and decree dated 19.10.2000 dismissed the suit of the plaintiffs holding that the plaintiffs obtained a demarcation in the year 1997 which did not show any encroachment of the defendant on the land of the plaintiffs. So far raising of the boundary wall was concerned, the learned trial judge took a view that no prudent person would raise boundary wall, after demarcation of his land, within 5 feet of the actual boundary. 8. Dissatisfied, the plaintiffs carried an appeal before the learned District Judge, which was allowed and the suit .in its entirety was remanded to the trial court for decision afresh. The learned District Judge took a view that the plaintiffs had filed an application for the appointment of Local Commissioner immediately after filing of the suit. Such application was not decided by the trial court. It was only on the date the judgment was given that this application was summarily rejected on the grounds that there was no necessity for any demarcation as the plaintiffs had taken demarcation of the spot twice before filing of the suit. Learned District judge was of the opinion that Local Commissioner should have been appointed to demarcate the land of the parties. He accordingly remanded the case to the trial court in its entirety. 9. Aggrieved the defendant is in appeal. 10. Having heard Mr. Learned District judge was of the opinion that Local Commissioner should have been appointed to demarcate the land of the parties. He accordingly remanded the case to the trial court in its entirety. 9. Aggrieved the defendant is in appeal. 10. Having heard Mr. Romesh Verma, learned counsel for the appellant and Ms. Vandana Kuthiala, learned counsel for the respondents, we are of the view that the learned District Judge, was not right in remanding the case in its entirety for fresh trial. 11. Rule 23 of Order 41 of the Code provides for remand of case by the Appellate court if the trial court had disposed of a suit upon a preliminary point and the decree is reversed in appeal. 12. Rule 23-A of order 41 provides for remand by the appellate court (a) the trial court disposed of a case otherwise than on a preliminary point; and (b) the decree is reversed in appeal and retrial is necessary 13. It is only on the satisfaction of these twin conditions, the appellate I court can exercise the power of remand under Rule 23-A of Order 41 of the Code. 14. Rule 24 contemplates a situation where the issues have not been properly settled but the evidence on record is sufficient to enable the Appellate Court to pronounce the judgment. In such a situation, it is not open to the Appellate court to remand the case to the trial court. The Appellate court is empowered, if necessary to resettle the issues and finally determine the suit even on the grounds different from that on which the lower court proceeded. 15. Rule 25 of Order 41 of the Code provides for a situation where the evidence on record is not sufficient to enable the Appellate Court to decide the controversy in appeal but where the trial court has failed to frame or try any issue or to determine any question of fact, which in the opinion of the Appellate court was necessary for right decision of the suit upon merits, in such an eventuality the Appellate Court may settle the issue and remand the case to the trial court for determining the issue so settled. The trial court after deciding such issue is to return the evidence to the Appellate Court together with its finding thereon and the reasons thereof for such findings within the time as may be fixed by the Appellate Court or extended from time to time by the Appellate Court. In other words, the appellate court cannot resort to the wholesale remand of the case. 16. As pointed by the Apex Court in P. Purushottam Reddy and another vs. Pratap Steels Ltd. (2002) 2 SCC 686, after the amendment of the Code of Civil Procedure in the year 1976, that all the cases of wholesale remand are covered by Rule 23 and Rule 23-A of Order 41 CPC and the Appellate Court cannot make the wholesale remand outside the purview of Rule 23 and 23-A of the Code. It was observed: "An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25, an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided." 17. In the present case, only reason which weighed with the learned. District judge to remand the case in its entirety was that in his opinion the trial court ought to have appointed local Commissioner to fix the boundaries! of the parties. The approach of the learned first Appellate Court, in our view, was untenable and not in accordance with the well settled position of law. 18. Rule 9 of Order 26 of the Code provides for the appointment of local Commissioner for the purpose of local investigation or for elucidating any matter in dispute or for other allied purposes. As pointed out by this court in Gian Chand Khatana and others Vs. Sh. Inderjit Chohdha (FAO No. 25 of 2002 decided on May 21, 2002), the object of the local investigation is not to collect evidence, which can best be taken in the court, but to obtain evidence, which from its very nature can only be gathered on the spot. Local investigation by a Commissioner, in our opinion, is merely to assist the Court and such report is not binding on the court, which can arrive at its own conclusion on the basis of the evidence on record even in variance to such a report. 19. Local investigation by a Commissioner, in our opinion, is merely to assist the Court and such report is not binding on the court, which can arrive at its own conclusion on the basis of the evidence on record even in variance to such a report. 19. In the present case, if the appellate court was of the opinion that the case could not be decided without the report of the local Commissioner regarding the boundaries of the disputed land then he himself could have appointed a commission for that purpose. Section 107 of the code empowers an appellate court to do so. Sub rule 2 of section 107 provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the code on courts j of original jurisdiction in respect- of suits instituted therein. In the circumstances, the learned District Judge was not bereft of the powers to appoint a Local Commissioner, if he felt that such a report was necessary for the decision of the case. 20. In our view, it was not one of those cases where retrial of the j case was necessary. An order of remand under Rule 23-A of Order 41 of the Code, as noticed earlier, operates as an open remand under which the whole case is remitted to the trial court for retrial subject to no restrictions. 21. In the facts and circumstances of this case, the appellate court had no jurisdiction to remand the case in its entirety to the trial court only for the reason that the report of the Local Commissioner was necessary for the adjudication of the case. 22. To conclude, the order of learned District judge, directing the wholesale remand of the case, is illegal and unsustainable. We set aside the same. The appeal shall go back to the learned District judge, Shimla, who shall restore the appeal to its original number and decide the same, taking into consideration the observations made hereinabove, in accordance with law. The parties shall appear before the learned District judge, Shimla on August 12, 2002. 23. Records of the case be sent back to the concerned court forthwith so that it reaches the court on or before the fixed date. No order as to costs.