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2003 DIGILAW 2423 (ALL)

TARA DEVI v. AWADH NARAIN

2003-10-15

UMESHWAR PANDEY

body2003
UMESHWAR PANDEY, J. ( 1 ) THE appellants-plaintiffs in the present First Appeal From order challenge the Judgment and Order dated 16-2-2000 of the 1st. Additional District Judge jaunpur passed in Civil Appeal No. 79 of 1998 remanding the case after setting aside trial courts Judgment dated 6-1-1984 whereby it (trial court) had decreed the suit for specific performance of contract. ( 2 ) THE plaintiffs-appellants had filed a suit for specific performance of contract dated 13-2-1979 and had prayed before the Court to direct the respondents-defendants to execute the sale deed in pursuance to the aforesaid agreement, else the same may be executed by the Court itself. The suit was contested by the defendants and written statement was filed. The parties in support of their contentions/pleadings led evidence before the trial Court and after closure of evidence and upon giving full hearing to the parties, the suit was decreed. The defendants thereupon preferred the First appeal (Civil Appeal No. 79 of 1998) before the District Judge which was ultimately decided vide impugned judgment by the court of 1st. Additional District Judge. The lower appellate judge during the course of appeal had permitted certain additional documentary evidence filed on behalf of the defendants and on making overall consideration of the effect of the said new documents, the learned Additional district Judge gave a finding that certain aspect of the matter touching to the merit of the case, inasmuch as being vital to the contentions raised by the defendants, had not been properly considered by the trial Court. He also observed that since the appellate Court had accepted certain additional documentary evidence it was found just and proper to set aside the Judgment and decree of the trial Court and remand the case to that Court for recording fresh findings and for giving decision on all the issues after affording opportunity of leading evidence to the parties. ( 3 ) AGGRIEVED with the aforesaid direction of the appellate Court, remanding the case to the trial Court the plaintiffs have come up in this appeal. ( 4 ) I have heard the learned counsel for the parties and have perused the material available on the record. ( 3 ) AGGRIEVED with the aforesaid direction of the appellate Court, remanding the case to the trial Court the plaintiffs have come up in this appeal. ( 4 ) I have heard the learned counsel for the parties and have perused the material available on the record. ( 5 ) THE learned counsel for the appellant has contended that the remand order passed by the lower appellate Court after setting aside the decree granted by the trial Court is wholly uncalled for and cannot be held to be legally sustainable. The lower appellate Court being a Court of first appeal could record the findings on the facts, inasmuch as, with same liberty and freedom as it is done by the trial Court. No findings have been recorded in the impugned Judgment with regard to any essential requirement of fresh additional evidence to be adduced between the parties. As regards the additional documentary evidence, it was filed in the appellate Court itself and the learned additional District Judge was free to make an appreciation of the entire evidence touching to the facts of the case himself and there was no justification to set aside the Judgment of the trial Court and to remand the whole case for considering the controversies involved and decide the same on the basis of evidence available in the case. It is further contended that lower appellate Court and parties were alive to the issues involved in the case and it had to simply examine the evidence and those points which have been raised in the impugned Judgment to find out whether the findings recorded by the trial Court were correct or not in law and on facts. The first appellate Court being empowered to go into the facts of the case and take its own decisions on the evidence available on the record, there was absolutely no necessity for the Court below to pass an order of remand of the case to the trial Court. ( 6 ) THE learned counsel for the appellant has relied upon the following case laws:-1. P. Purushottam Reddy and another v. Pratap Steels Ltd. 2. Brij Raj Singh and others v. Smt. Shiv Rani. 3. The Municipal Corporation of greater Bombay v. Lal Pancham and others. ( 6 ) THE learned counsel for the appellant has relied upon the following case laws:-1. P. Purushottam Reddy and another v. Pratap Steels Ltd. 2. Brij Raj Singh and others v. Smt. Shiv Rani. 3. The Municipal Corporation of greater Bombay v. Lal Pancham and others. ( 7 ) IN the case of P. Purushottam Reddy (supra), the Supreme Court in paragraphs 10 and 11 has enunciated relevant principles in the following terms : 10. The next question to be examined is the legality and properiety of the order of remand made by the High Court. Prior to the insertion of rule 23-A in order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41, 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 findings on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an ommission on the part of the trial court to frame or try any issue or to determine 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 inasmuch 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 the 1976 amendment that the court, in an appropriate case could exercise its inherent jurisdiction under section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, through not covered by any specific provision of order 41, c. P. C. In cases where additional evidence is required to be taken in the event of any one of the clauses 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 23-A 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 23-a. After the amendment, all the cases of wholesale remand are covered by rule 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanauati v. Sushila Mahendra Nanavati, 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 rules 23 and 23-A. 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 41 rule 31 CPC and hence, it is no Judgment in the eyes of law, it may set aside the same and send the matter back for rewriting 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 23-A or rule 25, C. P. C. an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. 11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving themto be tried and decided by the trial Court. It is not a case where a retrial is considered necessary. Neither rule 23 nor rule 23-A of order 41 applies. None of the conditions contemplated by rule 27 exists so as to justify production of additional evidence by either party under that rule. It is not a case where a retrial is considered necessary. Neither rule 23 nor rule 23-A of order 41 applies. None of the conditions contemplated by rule 27 exists so as to justify production of additional evidence by either party under that rule. The validity of remand has to be tested by reference to rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of forms 47 and 48 of appendix a, CPC is concerned, the High court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether section 16 (c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High court was to examine whether such finding of the trial court was sustainable or not - in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision. ( 8 ) AS is obvious from the above observations of the Apex Court that recourse to the provisions of the Order XLI Rule 23 or 23-A of the C. P. C. should not be taken by the first appellate Court, as a matter of routine. It is expected of an appellate Court to be circumspect in passing order of remand when the case is not fit for that. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. In Brij Raj Singhs case (supra), Single Judge of Lucknow Bench of this Court has expressed the view that the first appellate Court should in such circumstances refrain from passing order of remand for a retrial when all relevant evidence touching to the controversies in the case are already available on the record. ( 9 ) IN the instant case also the Judgment of the lower appellate Court does not speak of essential requirement of any additional evidence in the case. It contains cursory remarks for the trial Court to afford parties opportunity to lead evidence. ( 10 ) IN the case of Municipal Corporation, Bombay (supra), the Apex Court had made following observations:-this clearly shows that what the highcourt has in substance done 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. 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. ( 11 ) THE learned Additional District Judge while making the order of remand has tried to substantiate and support his view for such femand by the fact that the parties had filed certain additional documentary evidence making it necessary for him to send back the case for a fresh trial. In facts, the Court of Additional district Judge is a Court of first appeal. If it has accepted certain peace of documentary evidence under Order XLI rule 27 of the C. P. C. , such a course is not permissible to it, as has been held above in the case of Municipal Corporation, Bombay (supra ). General order of remand as such is not permissible under Order XLI rule 23 or rule 23-A of the C. P. C. when the first appellate Court has clear jurisdiction to enter upon the facts of case and record a just and reasonable finding which may or may not be on the line of the findings recorded by the trial Court. ( 12 ) A perusal of the impugned Judgment shows that the lower appelalte Court has pointed out certain circumstances touching to the appreciation ofthe evidence documentary as well as oral, which according tohirn, have not been properly appreciated by the tiral court. It has also been referred in the impugned judgment of the Additional District Judge that in the light of the fresh documentary evidence filed before the appellate Court, those aspects of the matter as pointed out could be better appreciated by the trial Court. It was in order to have the appreciation of those aspects of the matter that the learned Court below passed the orders remanding the case to the trial Court for fresh decision/trial. It was in order to have the appreciation of those aspects of the matter that the learned Court below passed the orders remanding the case to the trial Court for fresh decision/trial. To my point of view, this order of remand does not appearto be one, which could either be passed under the provisions of the Order XLI Rule 23 or Rule 23-A of the Code of Civil Procedure. In fact, there is nothing on record to suggest that any retrial of the suit was required nor there was any circumstance compelling the Court below to pass such order. If certain aspects/points touching to the appreciation of evidence are available on the record which had not been dealt with by the trial Court, the appellate Judge being himself possessed of jurisdiction to enter into the facts of the case and appreciate the evidence, could have done this job instead of passing an unwarranted remand order giving an undeserved lease of life to the litigation between the parties. There is nothing in the impugned Judgment to show that any further evidence was required to be taken and in all propriety the evidence which was available including the additional evidence taken at the appellate stage, was sufficient to adjudicate upon the controversies arising out of the pleadings of the parties. The order of remand directing retrial challenged in this appeal appears to be wholly unwarranted because allthose facts and circumstances which the learned Additional district Judge has referred in his impugned order could have been well considered, appre-ciated and adjudicated upon by him in the same manner as it could be done by the trial Court. In this context reliance has been placed upon the case of M/s. Kumar Brothers and Co. and others v. Bhaguati Prasad and another. ( 13 ) IT has been contended from the side of the respodents-plaintiffs that the order of remand is quite innocuous and it should not be a cause of grievance to either of the parties if a particular point in issue which is based upon the facts of the case, is decided by the trial court. The party aggrieved from such decision may have redressal by way of first appeal but if that issue is decided by the first appellate court only, the aggrieved party does not have any remedy left thereafter in the second appeal. The party aggrieved from such decision may have redressal by way of first appeal but if that issue is decided by the first appellate court only, the aggrieved party does not have any remedy left thereafter in the second appeal. As I have already held above in the case of P. Purushottam Reddy (supra), the Apex court in its Judgment very clearly warned the courts below for not passing an unwarranted order of remand giving litigation an undeserved lease of life. As already observed above, the points in controversy and the aspect of the matter which have been pointed out in the impugned judgment by the Court below since could be considered and decided by that Court also, there was absolutely no justification for passing the case to the trial Court and directing a remand in such manner. Such order, in the circumstances enumerated above, is not sustainable in law. A remand order not justifiably falling within the purview of Order XLI rule 23 or 23-A of the Code, should not be permitted to sustain and it has to be set-aside. ( 14 ) ACCORDINGLY, the appeal succeeds and is allowed. The impugned order passed by the lower appellate Court remanding the suit for retrial is set-aside. The Additional District judge/district Judge is directed to hear the appeal on merits and pass Judgment in accordance with law. ( 15 ) THE costs of this appeal shall abide by the ultimate result of the suit. Appeal allowed. .