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2007 DIGILAW 620 (PAT)

Mumtaj Khan @ Mumtaz v. Nabi Hussain Khan

2007-03-26

REKHA KUMARI

body2007
Judgment Rekha Kumari, J. 1. This miscellaneous appeal is directed against the judgment and decree dated 12.12.2000 passed by the 2nd Addl. District Judge, Buxar in Title Appeal No. 16/85 under which he has set aside the judgment and decree dated 22.3.1985 passed by the 2nd Munsif, Buxar in Title Suit No. 125/75 and has remanded the suit for reconsideration afresh in accordance with law. 2. The grounds on which the suit has been remanded are that the learned Munsif has not discussed the oral evidence adduced by the parties and the Munsif has failed to frame an issue whether the suit property mentioned in Schedule I was the property of Olayat Khan and Gul Mohammad which was essential for the decision of the case with regard to Schedule I property. 3. It appears that though notices were served on the respondents, only respondents No. 2 to 5 had entered appearance in this appeal and as regards respondent No. 7, Noor Mohammad Khan it was reported that he was dead. Accordingly, the application was filed. On 24.5.2002 a petition was filed on behalf of the appellants for deleting the name of Noor Mohammad Khan and substituting his only heir his wife Akhtari Begum in his place after setting aside the abatement. 4. Akhtari Begum, in the meantime, had also appeared. The petition was kept with the consent of respondents No. 2 to 5 for disposal at the time of final hearing. No body, however, appeared on behalf of any of the respondents during the first hearing. As such, only the learned Counsel for the appellants was heard. 5. Learned Counsel for the appellants submitted that the respondent Noor Mohammad died on 16.4.1991 leaving behind her widow Akhtari Begum as his only heir and legal representative. He was a respondent in the title appeal and as he died during the pendency of the title appeal and no application for substitution was made by the appellants in the title appeal and his name was not expunged during the pendency of that appeal and his name continued and the appellants of this appeal had no knowledge of the death of Noor Mohammad he was made a respondent in this appeal also. He further submitted that the appellants of this appeal came to know about the death of respondent No. 7 only when the service report of appeal notice sent was received and therefore, there was no wilfull laches on the part of the appellants to substitute the name of the legal representative of Noor Mohammad in time and hence, the name of his wife Akhtari Begum be substituted in his place after setting aside the abatement. 6. In view of the above submissions the prayer is allowed and the name of Akhtari Begum be substituted in place of Noor Mohammad, respondent No. 7. 7. Learned Counsel for the appellants then submitted that the learned appellate court below has acted illegally in setting aside the judgment and decree of the trial court and remanding the case for fresh consideration. It is well settled that when the evidence is available before the appellate court it should exercise its own judgment and decide the appeal and not remand it to the trial court for fresh consideration. He further submitted that if the trial court did not frame any issue and that the issue was essential for the decision of the suit, the appellate court itself could frame the issue and refer the same for trial to the trial court for taking additional evidence as prescribed under Order 41 Rule 25 C.P.C. and that was no ground for remanding the case. 8. I agree with the above submissions of the learned Counsel. 9. Order 41 Rule 24 C.P.C. provides that "Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." 10. Order 41 Rule 25 C.P.C. provides that "Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court of extended by it from time to time." 11. So, in this case also when there was sufficient evidence before the appellate court enabling it to pronounce its judgment on merit, the appellate court should have done it. Similarly if any new issue was necessary to be framed as provided under Order 41 Rule 25, it could frame the issue and refer the same for the decision of the trial court after taking additional evidence. The grounds taken by the learned appellate court were thus not sufficient at all for remand of the case for retrial. 12. It is also well settled that an order of remand should not be passed by the appellate court as a matter of course. As per Order 41 Rule 23 and 23A C.P.C. an order of remand can be passed when a suit has been disposed of by the trial court on a preliminary point or when it is called for proper adjudication of the case, but the order of remand in this case has not been passed on any of this grounds. 13. Hence, the order of remand passed by the appellate court in this case does not appear to be legal. In the case of Ram Binod Rai and Anr. V/s. Most. Ram Sumari Devi and Ors. reported in 2004 (2) PLJR 755 , relied on by the learned Counsel, it has been held that the appellate court should not ordinarily remand a case merely because it considered the reasoning of the trial court to be wrong. When the material is available before it, it should exercise its own judgment and decide the appeal. reported in 2004 (2) PLJR 755 , relied on by the learned Counsel, it has been held that the appellate court should not ordinarily remand a case merely because it considered the reasoning of the trial court to be wrong. When the material is available before it, it should exercise its own judgment and decide the appeal. The learned appellate court being a court of facts is duty bound to reappraise the entire evidence available on record and come to its independent conclusions completely unmindful of trial courts judgment. The decision lends support to the above view. 14. Learned Counsel also submitted that as respondent No. 7 who was respondent No. 16 before the trial court died during the pendency of the appeal and his legal representative was not substituted by the appellants in the lower appellate court, the appeal had abated and the appellate court could not have proceeded with the appeal and on this ground also this appeal is not competent. 15. In this connection it may be pointed out that according to the case of the plaintiff Noor Mohammad (respondent No. 7) had connection with only Schedule III land which was separable from the lands of other Schedule. So, if the appeal had actually abated it has abated in part which should not prevent the appellate court to proceed with the appeal. However, I do not want to give any finding on his part. As the judgment of the appellate court is being set aside on the other ground and this case is being sent for fresh hearing, the appellant may agitate this point before the lower appellate court at the time of hearing. The lower appellate court would also decide this point independently without being prejudiced by any observation made in this regard in this order. 16. In view of the discussions made above, the impugned judgment passed by the learned court of appeal below is set aside. The learned court of appeal below would hear the appeal on merits and as the case is old, dispose it of expeditiously. If it feels that the trial court has omitted to frame issue which is essential for just decision of the case, he may act in accordance with the provisions of Order 41 Rule 25 C.P.C. 17. In the result, with the observations made above the appeal is allowed but without costs.