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2010 DIGILAW 3467 (ALL)

Sonu Gupta v. Shanti Devi

2010-11-10

S.S.CHAUHAN

body2010
Satyendra Singh Chauhan, J.;- Heard learned counsel for the plaintiff-appellant and the learned counsel for the defendant-respondent. 2. The present appeal has been filed for setting aside the judgement and decree dated 21.3.2007 passed by the Addl. District Judge, Barabanki. 3. Brief facts of the case are that the plaintiff-appellant filed a Regular Suit No. 157 of 1987 with the prayer that the house in question numbering G/1087/1196 situated in Mohalla-Kanoongoyan, City Nawabganj, District Barabanki with the boundaries mentioned therein was stated to be purchased by Raghunath s/o Kandhai from one Raghunath s/o Vishram vide sale deed dated 5.10.1953. It was further stated in the Suit that out of wedlock of first wife ( Smt. Shyama Devi) of Raghunath one daughter namely Smt.Shanti Devi (defendant-respondent) was born. Smt. Shayma Devi expired much before and thereafter Raghunath s/o Kandhai married Smt. Yadurai. There was no issue out of the wedlock of Raghunath and Smt. Yadurai and Raghunath expired 10 years prior to the date of institution of the Suit and Smt. Yadurai died on 31.7.1986. It was further stated that the said house was sold to Smt. Yadurai by Radhunath s/o Kandhai vide sale deed dated 6.11.1970 and by virtue of sale deed Smt. Yadurai became owner of the said house and she remained in possession till she was alive. It was further stated that Raghunath also lived in the said house till he was alive. It was further stated in the Suit that Smt. Yadurai was earlier married to one Sunder Lal s/o Bhagwan r/o village Narthuwa and out of wedlock of Smt. Yadurai and Sunder one daughter Smt. Chanda was born and when Smt. Yadurai was married to Raghunath, her daughter Chanda also came along with her mother and started living along with Raghunath. It was further stated that Raghunath got married Smt Chanda with the father of plaintiff-appellant and Smt. Chanda expired soon after the plaintiff-appellant was born. The plaintiff-appellant came into possession of the house in question after death of Smt. Yadurai. 4. The defendant-respondent used to visit Raghunath's house off and on and she did not take in good taste regarding sale of house to Smt. Yadurai. Smt. Yadurai seriously fell ill prior to her death and she died out of Cancer. The plaintiff-appellant came into possession of the house in question after death of Smt. Yadurai. 4. The defendant-respondent used to visit Raghunath's house off and on and she did not take in good taste regarding sale of house to Smt. Yadurai. Smt. Yadurai seriously fell ill prior to her death and she died out of Cancer. After rituals of Smt. Yadurai took place the defendant-respondent expressed her desire to live in Barabanki and she also desired to open a betel shop which father of the appellant gave permission to live in the house and also gave small place to carry on the said betel shop. Later on the said shop was closed. The defendant-respondent moved an application in the Nagar Palika for mutating her name and when plaintiff-appellant came to know about the said application, he inquired about the said application and came to know that a sale deed has been executed on 6.11.1970 in favour of defendant-respondent Smt. Shanti Devi. The said sale-deed is alleged to have been executed by an impostor and so the plaintiff-appellant filed Suit for cancellation of the sale deed along with the eviction and damages. 5. Written statement was filed in the Suit and parties led their evidence before the trial court. The trial court after considering the material on record dismissed the said Suit vide judgement and decree dated 24.3.1998.Feeling aggrieved with the said judgement and decree Regular Civil Appeal No.21 of 1998 was filed and the appellate court after considering the material on record remanded the matter to the trial court for deciding the case afresh after taking into consideration the observations made in the body of judgement and after hearing both the parties,hence this appeal. 6. Submission of learned counsel for the plaintiff-appellant is that the appellate court has not appreciated the evidence on record in the correct perspective and proceeded to remand the matter in respect of validity of the sale deed. His further submission is that the appellate court instead of undertaking the exercise and recording his finding in accordance with law has remanded the matter to the trial court It is further submitted that the appellate court has misdirected himself in remitting the matter to the trial court. It is also submitted that the appellate court has full power of the trial court and has also power to re-appreciate the evidence on record. It is also submitted that the appellate court has full power of the trial court and has also power to re-appreciate the evidence on record. In these circumstances, the order of remand as directed by the appellate court is illegal and can not be sustained. 7. Learned counsel for the plaintiff-appellant in support of his case has placed reliance upon the cases of P. Purushottam Reddy and another Vs. Pratap Steels Ltd., 2002 (20) LCD 831, Ashwinkumar K. Patel Vs. Upendra J.Patel and others,1999 (1) Allahabad Rent Cases, (SC) 650 and Vishnu Gopal and others Vs. Prem Dutt Gautam, 2007(1) AWC 383. 8. Learned counsel for defendant-respondent could not dispute the aforesaid legal position and submitted that though liberty was given to the trial court to decide the issue no.4 afresh and, therefore, the parties were at liberty to approach the trial court in this regard but since no evidence is to be led, therefore, the legal position as propounded by the apex Court can not be disputed. 9. Having heard learned counsel for the parties and gone through the record, I find that the case has been remitted to the trial court only on the ground that the evidence on record has not been fully appreciated and perverse finding has been recorded. 10. In the case of P. Purushottam Reddy and another (Supra), the apex Court has held as under :- "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 judgement 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 judgement in the eye of law, it may set aside the same and send the matter back for rewriting the judgement 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." 11. 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." 11. In the case of Ashwinkumar K. Patel (Supra) the apex Court has held as under :- "High Court should not ordinarily remand a case under Order XLI, Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand order lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. This Court, is therefore, of the view that the remand by the High Court was not necessary." 12. In the case of Vishnu Gopal and others(Supra), this Court has held as under :- "Therefore, the appellate court was not justified in remanding the matter back to the trial court to dispose of the suit within a period of four months after giving opportunity to the parties to adduce their evidence. The said direction affording opportunity to the parties to adduce evidence in the facts and circumstances of the case is uncalled for as the conduct of the defendant itself is blemished. This part of the order can not be sustained, but that is no the end of the matter. The appellate court has rightly found that the case was not examined on merits. Still it is open to the defendant to argue on the basis of the material on record and he can demonstrate that the decree of the trial court can not be sustained on the basis of the material on the record. For this limited purpose the appellate court should have examined the matter itself instead of restoring the matter to the file of the trial court." 13. For this limited purpose the appellate court should have examined the matter itself instead of restoring the matter to the file of the trial court." 13. The trial court has ample power to consider the evidence on record and to record findings on the basis of the evidence which in the discretion of the appellate court is correct and legal. The appellate court ought to have decided the case on merit rather relegating the case to the trial court and directing to decide the issue afresh when the entire evidence was before him and no knew evidence was to be led before the trial court. The proposition of law as laid down by the apex Court also goes to show that in such circumstances the appellate court can decide the issue and record a finding on the basis of evidence available on record. When the appellate court was capable to record the finding then in such circumstances, the remand order would be a futile exercise and would be against settled proposition of law. 14. Considering the aforesaid proposition of law, the order dated 21.3.2007 passed by the appellate court can not be sustained. The appeal is allowed and the remand order dated 21.3.2007 is hereby set aside. The matter is remitted to the appellate court to decide the appeal in accordance with law after considering the evidence on record and to reach an independent decision by recording cogent finding.