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2010 DIGILAW 2053 (PNJ)

Gurdarshan Singh v. Balwinder Singh

2010-07-16

MEHINDER SINGH SULLAR

body2010
Judgment Mehinder Singh Sullar, J. 1. Tersenessly, the facts relevant for disposal of the present appeal and emanating from the record is, that Balwinder Singh and Angrej Singh sons of Hardial Singh-respondent-plaintiffs(hereinafter to be referred as "the plaintiffs") filed the present suit for a decree of possession against Gurdarshan Singh son of Shamsher Singh-appellant and Karnail Kaur wife of Gurbaksh Singh-pro- forma respondent No.3-defendants (for brevity "the defendants") on the basis of their ownership. According to the plaintiffs, that although they are owner and in possession, but the defendants have illegally and forcibly encroached upon the disputed property to the extent of 1 kanal 1 marla and merged the same with their property. 2. The contesting defendant filed the written statement, inter alia, pleading certain preliminary objections of, maintainability of the suit, locus standi and cause of action of the plaintiffs, non-joinder and mis-joinder of the necessary parties etc. On merits, it was claimed that the plaintiffs are neither the owner of the property in dispute, nor the defendants have merged the same in their property. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 23.02.2008. 4. The plaintiffs did not feel satisfied with the impugned judgment and decree of the trial Court and filed the appeal. The first appellate Court accepted the appeal, set aside the judgment and decree of the trial Court and instead of deciding the same on merits, remanded the case to the trial Court for its fresh decision vide impugned judgment dated 08.05.2009. 5. Gurdarshan Singh-appellant-defendant did not feel satisfied with the impugned judgment of remand and filed the present appeal. That is how I am seized of the matter. 6. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable assistance and after the considering the matter deeply, to me, as the impugned judgment of the first appellate Court cannot legally be sustained, therefore, the instant appeal deserves to be accepted, for the reasons mentioned here-in- below. 7. As is evident from the record that the plaintiffs filed a simple suit for possession on the basis of title. 7. As is evident from the record that the plaintiffs filed a simple suit for possession on the basis of title. It is not a matter of dispute rather clear from the judgment of the trial Court that the present suit was earlier decided by the trial Court and the same was remanded by the first appellate Court vide judgment dated 11.11.2006 rendered in Civil Appeal No. 165/2004 with the direction to appoint a revenue officer to demarcate the property in dispute. 8. Having completed all the codal formalities, the trial Court again decided this very suit. But strange enough, it was again remanded by the first appellate Court in a routine fashion vide impugned judgment dated 08.05.2009. The operative part of which is, as under: - "For the aforesaid reasons, the judgment and decree under appeal is set aside. The appeal is accepted and the case is remanded to the learned lower court to decide the matter afresh in the light of the provisions of Order 26 Rule 10(2) CPC. The parties through counsel are directed to appear before the learned lower court on 18.05.2009". 9. Above being the position on record, now the core question that arises for determination in this appeal is, whether the first appellate Court was legally justified in again(second time) remanding the case to the trial Court or not? 10. Having regard to the rival contentions of the learned counsel for the parties relatable to the material on record, to my mind, the first appellate Court has slipped into a deep legal error, in this relevant connection. As strange, as it may look, but strictly speaking the tendency and frequency of the lower appellate courts in remanding the cases, without any legal basis, in order to show the disposal of the appeals, is increasing day by day and the case in hand is the burning example of such like cases. Assuming for the sake of arguments (though not admitted), if the first appellate Court felt the necessity of any further demarcation or to remove any ambiguity in this respect, it ought to have itself appointed the Local Commissioner to demarcate the property in dispute, or ought to have proceeded to take the additional evidence, as the case may be, instead of remitting the matter to the trial Court second time for fresh trial in a routine manner. 11. 11. Again, it is not a matter of dispute that the trial Court has decided the case on merits, by taking all the relevant issues. In such a situation, the matter can only be remanded under Order 41 Rule 25 CPC, which postulates 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 thereof. Rule 24 CPC posits that where the evidence on the record is sufficient to enable the Appellate Court to pronounce the 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. 12. Meaning thereby, the first appellate Court can remand the case to the trial Court only in the event, if that squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on record, then it was the statutory duty of the first appellate Court to decide the case on merits, as contemplated under Rule 24 CPC. It cannot straightway rush to Rule 25 CPC to make an order of remand. The order of remand can only be made, where the trial Court has omitted to frame or try any issue, or to determine any question of fact essential to right decision of the suit. The provision of Rule 25 CPC is only to be invoked, where an issue should be framed for proper decision of the suit, but was not framed by the trial Court. The provisions of remand cannot be invoked to enable the parties to have a third innings with a view to fill-up the lacuna in the pleadings or evidence, as the case may be. The provisions of remand cannot be invoked to enable the parties to have a third innings with a view to fill-up the lacuna in the pleadings or evidence, as the case may be. The Courts should extremely be slow to exercise the jurisdiction of remand, as envisaged under Rule 25 CPC, otherwise there would be no end to the litigation and the people would lose faith in the judicial system. The first appellate Court having found all the facts, should work out the legal consequences and ought to have decided the matter itself, instead of sending the case back to the trial Court. There is no bar in deciding the issues on merits raised in the first appeal by the first appellate court itself. The order of remand cannot possibly be passed in a routine fashion just in order to dispose of the appeals, without any legal basis. 13. Therefore, seen from any angle, the impugned judgment of remand is not in consonance with the statutory provisions of Order 41 Rule 25 CPC. Since, there was sufficient evidence on record to decide the real controversy between the parties, so, the first appellate Court ought to have decided the matter itself, instead of remitting the matter back to the trial Court in a routine manner. Hence, the impugned judgment of the first appellate Court cannot legally be sustained, in the obtaining circumstances of the case. 14. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 15. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the case, the instant appeal is hereby accepted. The impugned judgment is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law. 16. The parties through their counsel are directed to appear before the first appellate Court on 07.09.2010.