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2006 DIGILAW 290 (RAJ)

Bhanwar Lal v. Bhera

2006-01-30

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The learned Counsel for the respondents has raised preliminary objection that the second appeal is not maintainable as the first appellate Court by the impugned Judgment and decree dated 03.08.1975 only remanded the matter back to the trial Court for re-trial. The learned Counsel for the appellant also agrees that the second appeal against the impugned Judgment is not provided but misc. appeal is maintainable under Order 43 Rule 1(u), CPC, therefore, this second appeal may be treated as misc. appeal. The learned Counsel for the appellant also submitted that the first appellate Court committed serious error of law in allowing the appeal and sending the matter back to the trial Court for de novo trial. According to the learned Counsel for the appellant, the facts pleaded in the suit can be proved by the affidavit. It is submitted that the procedure of taking evidence in Court can be dispensed with by the Court and in this case, when no new event took place after the remand order and after adding of new parties, the Court was justified in relying upon the affidavit of the plaintiff and consequently decreeing the suit. 3. According to the learned Counsel for the appellant, in fact the suit was decreed by the trial Court on 18.03.1975 and the appeal was preferred after inordinate delay on the pretext that the decree was amended by the trial Court on 011.1975 by which only a few of the parties were added in the title of the decree, therefore, the starting period of limitation is 18.03.1975 and not 011.1975. It is also submitted by the learned Counsel for the appellant that the trial Court committed error of law in condoning the delay in filing the appeal under Section 5, Limitation Act. 4. The respondents submitted cross-objection and after raising objection about the maintainability of the second appeal, further submitted that the first appellate Court should have dismissed the suit of the plaintiff because the affidavit filed by the plaintiff could not have been read as evidence in appealable case and there is no other evidence on record. Therefore, the respondents prayed that the suit of the plaintiff be dismissed. 5. Therefore, the respondents prayed that the suit of the plaintiff be dismissed. 5. Initially the second appeal was admitted by this Court on 12.09.1985 after framing the following substantial questions of law:- “(1) Whether the first appellate Court was wrong in holding the appeal to be within limitation or condoning the delay under Section 5, Limitation Act assuming the appeal to be barred by time without any application under Section 5 Limitation Act, .(2) Whether the first appellate Court should not have remanded the matter and should have maintained the decree on the basis of the evidence of the plaintiff on affidavit, .(3) Whether the evidence by affidavitsproduced before Defendants No. 9, 10 and 11 had been added as defendants can be read against them.” 6. I Considered the submissions of the learned Counsel for the parties and perused the record also. It will be worthwhile to mentioned facts leading to this second appeal. 7. A suit for permanent injunction and for possession was filed by the plaintiff in the trial Court as back as on 22.06.1970. In the suit, the evidence of the plaintiff was recorded and the plaintiff produced as many as four witnesses and closed the evidence on 112.1971. The defendants evidence was closed on 19.01.1972. Thereafter, some applications were filed but they are not relevant for the purpose of deciding this appeal and ultimately, the suit of the plaintiff was decreed by the trial Court by Judgment and decree dated 31.07.1972. The appeal was preferred by the defendants which was allowed by the first appellate Court by order dated 07.02.1974 on the ground that looking to the nature of the suit and relief claimed by the plaintiff the procedure as provided under Order 1 Rule 8, CPC should have been followed by the trial Court. The first appellate Court by order dated 07.02.1974 set aside the Judgment and decree of the trial Court dated 31.07.1972 and remanded the matter back to the trial Court for deciding the suit after publication of the notice under Order 1 Rule 8, CPC. After the remand, the notice under Order 1 Rule 8, CPC, was published and the Defendants No. 7, 8, 9 and 11 became the parties in the suit by the order of the trial Court dated 16.09.1974. 8. After the remand, the notice under Order 1 Rule 8, CPC, was published and the Defendants No. 7, 8, 9 and 11 became the parties in the suit by the order of the trial Court dated 16.09.1974. 8. It appears that after remand of the suit by the appellate Court on 07.02.1974 and after addition of the parties-Defendants No. 7 to 11, no new evidence was produced from the side of the plaintiff on the ground that since Defendants No. 7 to 11 did not appear before the trial Court on 27.02.1975 and the trial Court passed the ex parte order against those defendants, therefore, the plaintiff also remained under impression that no new evidence will be needed. For this reason, on 27.02.1975, the trial Court closed the evidence of the plaintiff and observed that since no witness of defendant is present, therefore, the evidence of defendants is also closed. However, it appears from the order-sheet dated 13.02.1975 that the case was fixed on 27.02.1975 for filing the written statement only and was not the date for recording of the evidence, either of the plaintiff or of the defendants. The plaintiff could have submitted before the trial Court on that if he wished, that the plaintiff do not want to produce evidence, but the defendants evidence could not have been closed on a date when the case was not fixed for the evidence of the defendants. Be it as it may be, the trial Court heard the arguments on the same date, i.e., on 27.02.1975 and decreed the suit of the plaintiff by the Judgment and decree dated 18.03.1975. 9. An application was submitted before the trial Court pointing out that some of the defendants have not been shown in the title of the Judgment and the decree, therefore, decree be amended. The decree dated 18.03.1975 was amended by the trial Court on 011.1975 which is apparent from the Judgment of the trial Court dated 18.03.1975. In view of the above, the defendants preferred appeal to challenge the decree dated 011.1975 under impression that before that Judgment and decree of the trial Court could not have been challenged. The decree dated 18.03.1975 was amended by the trial Court on 011.1975 which is apparent from the Judgment of the trial Court dated 18.03.1975. In view of the above, the defendants preferred appeal to challenge the decree dated 011.1975 under impression that before that Judgment and decree of the trial Court could not have been challenged. In the appellate Court, an objection was raised by the plaintiff that the appeal is barred by time which plea was rejected by the first appellate Court on two grounds, firstly, the limitation starts from the amended decree dated 011.1975 and secondly, if there is delay, it can be condoned under Section 5, Limitation Act. However, on merit, the first appellate Court held that since the trial Court in its Judgment relied only on plaintiff s affidavit and passed the decree dated 18.03.1975 (amended on 011.1975), therefore, the first appellate Court after condoning the delay in filing the appeal, remanded the matter back to the trial Court to re-try the suit with a direction to the plaintiff to amend the plaint impleading the newly added defendants which were added by the order of the trial Court dated 16.09.1974 and thereafter the evidence of both the parties be recorded and suit be decided again. 10. The facts given above clearly shows that the appellate Court remanded the matter back to the trial Court and, therefore, the appellate order dated 03.08.1974 is not appelable order. The appeal was admitted in the year 1984 after framing the substantial questions of laws, therefore, this appeal can be treated as a misc. appeal in place of second appeal and there is no reason to dismiss the appeal simply because it has been filed as second appeal, particularly in view of the fact that for deciding second appeal and misc. appeal in this case, the High Court only has jurisdiction. But since this Court after examining the merit of the case, found that there in no merit in the appeal, therefore, there is no need to go for mere converting this second appeal into misc. appeal. Admittedly, the first appellate Court remanded the suit initially by the order dated 07.02.1974 with direction to follow the procedure as provided under Order 1 Rule 8, CPC. Admittedly, no evidence was recorded after the remand order dated 07.02.1974 by the trial Court. appeal. Admittedly, the first appellate Court remanded the suit initially by the order dated 07.02.1974 with direction to follow the procedure as provided under Order 1 Rule 8, CPC. Admittedly, no evidence was recorded after the remand order dated 07.02.1974 by the trial Court. The trial Court also did not accept plaintiff s evidence which was recorded during trial but before following procedure under Order 1 Rule 8, CPC as the legal evidence after the case was remanded by the order of the appellate Court dated 07.02.1974. Admittedly no evidence was recorded after publication of notice under Order 1 Rule 8, CPC and addition of the parties by the trial Court. The facts also reveal that the evidence of the plaintiff was closed on the date when the case was not fixed for the evidence of the plaintiff and the defendants evidence was also closed on the date when the case was not fixed for evidence of the defendants, therefore, in fact in this matter, there was no trial of the suit at all after the order dated 07.02.1974 and, therefore, if the first appellate Court by impugned order dated 18.03.1974 (amended on 011.1975) if set aside the Judgment and decree of the trial Court and remanded the matter back to the trial Court for re-trial, the first appellate Court has not committed any illegality, rather has only corrected the mistake which was committed by the trial Court. 11. Hence, there is no merit in this appeal and the same is hereby dismissed. Both the parties are directed to remain present before the trial Court on 27.02.2006. The trial Court shall take up the suit on the priority basis and if possible on day to day basis because of the fact that originally the suit was filed in the year 1970. Since, there was no trial of the suit at all after the order of remand dated 07.02.1974, therefore, the first appellate Court could not have dismissed the suit nor there appears to be any reason to dismiss the suit in the facts of the case. Hence, the cross-objections are dismissed. Records of the Courts below be sent forthwith.