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2004 DIGILAW 165 (PNJ)

Hasham v. Jhangi Ram

2004-02-13

HEMANT GUPTA

body2004
Judgment 1. The plaintiff has filed the present appeal against the order passed by the first Appellate Court on 1-5-2000 wherein while reversing the findings of the trial Court on issues Nos. 1 and 2, the judgment and decree of the trial Court was set aside and the suit was remanded back to the trial Court for fresh decision in accordance with law. 2. The plaintiff-appellant filed a suit for declaration and claimed permanent injunction and consequential relief. The Court has framed the following issues :- "1. Whether the decree dated 4-2-1991 suffered by defendant No. 1 in favour of defendants Nos. 2 to 9 in Civil Suit No. 613/90 from the Court of Sh. S. K. Aggarwal, the then Sub Judge, Karnal is wrong, illegal, null and void and is not binding upon the plaintiff and the same is liable to be set aside on the grounds taken in para No. 3 of the plaint? OPP 2. Whether the plaintiff is entitled to a decree for permanent injunction against the defendants on the grounds taken in the plaint? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Whether the suit is time barred? OPD 7. Whether the suit has been filed against Nihal Chand a dead person, if so its effect? OPD 8. Relief." 3. Issues Nos. 1 and 2 were taken up together by the learned trial Court and it was held that the plaintiff is in possession of the suit property and the decree was obtained by the defendant without impleading him and by keeping the Court in dark. Both the issues were thus decided against the defendant and in favour of the plaintiff. Issue No. 3 was also decided in favour of the plaintiff and against the defendant. So were issues Nos. 4 to 6. Consequently the learned trial Court decreed the suit of the plaintiff. 4. The first Appellate Court held that the trial Court has not given any specific finding on the controversy between the parties under issue No. 1 and that finding of the trial Court on issue No. 2 is not tenable and, therefore, the matter under both the issues require fresh decision. 4. The first Appellate Court held that the trial Court has not given any specific finding on the controversy between the parties under issue No. 1 and that finding of the trial Court on issue No. 2 is not tenable and, therefore, the matter under both the issues require fresh decision. Consequently, the learned first Appellate Court reversed the findings of the trial Court on issues Nos. 1 and 2 and set aside the judgment and decree passed by the trial Court. 5. In the present appeal the grievance of the appellant is that the learned first Appellate Court is required to decide issues Nos. 1 and 2 by itself or if necessary call for the report from the learned trial Court. However, the findings recorded by the trial Court on issues Nos. 3 and that 4 to 6 could not be set aside without giving any reason and the matter remitted to the trial Court for fresh decision. 6. The learned counsel for the appellant has relied upon Kartar Singh V/s. Punjab and Sind Bank with its Branch Office at Malout Mandi, 1987 (92) Pun LR 92, Ajit Singh V/s. Dhari, 1991 (2) Pun LR 210, Nirbhay Singh V/s. Gurdev Singh, 1991 (2) Pun LR 687 and P. Purushottam Reddy V/s. Pratap Steels Ltd., (2002) 2 SCC 686 : AIR 2002 SC 771 to contend that the appellate Court cannot remand the case by setting aside the judgment and decree merely because the additional evidence is required to be taken by the appellate Court. In the present case it is not even the finding of the first Appellate Court that some additional evidence is required in the absence of which the Appellate Court cannot pass the judgment. In Kartar Singh s case (supra) it has been held to the following effect :- "8. It has been held in Smt. Dhapan V/s. Vijay Singh that an order under Order XLI, Rule 23-A of the Code of Civil Procedure, pre-supposes that if the decree is reversed in appeal and if retrial is considered necessary, only then the power of remand is to be exercised by the appellate Court. The said rule does not authorise it to reverse the decree as a matter of course whenever the Court thinks that on some issues retrial is considered to be necessary. The said rule does not authorise 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 findings given by the 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." 7. Similarly, it was held to the following effect in Ajit Singh s case (1991 (2) Pun LR 210) (supra) :- "7. Under sub-section (1) of Section 13 of the Act, it is provided that every election petition shall be tried by the prescribed authority, as early as may be, in accordance with the procedure under the Code of Civil Procedure, 1908, Order XLI, Rule 23-A of the Code of Civil Procedure, 1908, pre-supposes that if the decree is reversed in appeal and if retrial is considered necessary, only then the power of remand is to be exercised by the appellate Court. In order to reverse a decree, the findings given by the Court on the issues are to be considered and could be reversed in appeal. In the instant case, the Illaqa Magistrate gave findings on three issues, which were framed on the pleadings of the parties, but the Appellate Authority has not considered the findings given by the Illaqa Magistrate on the issues. The Appellate Authority has also acted illegally in exercise of its jurisdiction in not setting aside the findings given on each issue before allowing the appeal. For this proposition, I am supported by two judgments of this Court Kartar Singh s case (1987 (92) Pun LR 92) (supra) and Smt. Dhapan s case (1980 (82) Pun LR 211) (supra). This being the position, the order of the Appellate Authority remanding the case without considering findings on each issue cannot be sustained in law and the same is, hereby, set aside." 8. In Nirbhay Singh s case (1991 (2) Pun LR 687) (supra) this Court considered the provisions of Order 41, Rules 23 and 23-A and held that where the appellate Court has allowed the amendment of the written statement, the appellate Court cannot set aside the judgment and decree of the trial Court and remand the case. In Nirbhay Singh s case (1991 (2) Pun LR 687) (supra) this Court considered the provisions of Order 41, Rules 23 and 23-A and held that where the appellate Court has allowed the amendment of the written statement, the appellate Court cannot set aside the judgment and decree of the trial Court and remand the case. It has been further held to the following effect :- ".......The appellate Judge can set aside the judgment and decree of the trial Court and remand the suit for fresh trial only under the provisions of order 41, Rules 23 and 23-A of the Civil Procedure Code (for brevity hereinafter to be referred to as CPC). Rule 23 of Order 41, CPC says that where the Court has disposed of the suit on preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct the issue and issues to be disposed of after permitting the parties to lead evidence. Rule 23-A of Order 41, CPC says that where the suit has been disposed of otherwise than on preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23 of Order 41, CPC. The Appellate Judge has not mentioned in the order as to on what ground he thought it fit to reverse the decree of the trial Judge. The decree of the trial Court has to be set aside under each issue. The reversal is not a matter of mere formality but of substance. The Appellate Judge has not mentioned in the order as to on what ground he thought it fit to reverse the decree of the trial Judge. The decree of the trial Court has to be set aside under each issue. The reversal is not a matter of mere formality but of substance. The Apex Court deprecated the practice of remand consequent on amendment of the pleadings in Gopal Krishnaji Ketkar V/s. Mahomed Jaffar Mohamed Hussein (AIR 1954 SC 5), and held thus :- "Amendment at appellate stage claiming relief in proper form, purely, of formal character - If the appellate Court thinks that any reply to the amendment by the defendant is necessary it should call one from the defendant and should itself determine whether, and if so how far, further proceedings were called for - Remand of case to lower Court held unnecessary." The Appellate Judge has not to complete the formality that the judgment and decree of the trial Judge is reversed but has in law to reverse judgment and decree of the trial Judge on every issue which has been determined by the trial Judge. The remand is thus illegal." 9 In Purushottam Reddy s case (AIR 2002 SC 771) (supra), the Hon ble Supreme Court has considered the order of remand passed by the Hon ble High Court under its inherent jurisdiction. It was held that in appropriate case the Court 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, though not covered by any specific provision of Order 41, CPC. However, an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. It is held that if additional evidence is required, then such evidence can be either allowed to be produced before the appellate Court or by directing any Court subordinate to the appellate Court to receive such evidence. The provisions of the Civil Procedure Code, 1908, after its amendment in the year 1976 was considered and it was held that in view of the express provisions of Rules 23 and 23-A of Order 41, the High Court cannot have recourse to its inherent powers to make a remand. The provisions of the Civil Procedure Code, 1908, after its amendment in the year 1976 was considered and it was held that in view of the express provisions of Rules 23 and 23-A of Order 41, the High Court cannot have recourse to its inherent powers to make a remand. It has been held to the following effect (para 10 of AIR) :- "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, though not covered by any specific provision of Order 41, CPC. 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 as under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 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. It is only in exceptional cases where the Court may now exercise the power of remand dehors 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 eye of the 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 Rule 23-A or Rule 25, CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided." 10. In view of the principles of law discussed above, it is apparent that the first Appellate Court has prima facie not agreed with the findings recorded by the trial Court on issues No. 1 and 2. Only two courses were open to the first Appellate Court. First, to reverse the findings on issues No. 1 and 2 by itself, or to seek report of the trial Court if evidence on such issues is deficient in any manner. It is not the finding recorded by the first Appellate Court that evidence in any manner is deficient. Therefore, the first Appellate Court was required to decide issues Nos. 1 and 2 by itself. It is open to the first Appellate Court either to reverse the findings on issues Nos. 1 and 2 or maintain the same, but on the same evidence it is not open to the first Appellate Court to set aside the judgment and decree of the trial Court and remand the case back to the trial Court for fresh decision on the said issues. There is no reasoning given by the first Appellate Court in respect of other issues. Therefore, the order passed by the learned Addl. District Judge, Karnal is contrary to the provisions of law as explained above. 11. Consequently, the appeal is accepted. The order dated 1-5-2000 passed by the first Appellate Court is set aside and the matter shall be reconsidered by the first Appellate Court in accordance with law. 12. The parties through their counsel are directed to appear before the learned Addl. District Judge, Karnal on 15-3-2004.