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2011 DIGILAW 599 (ALL)

Mohd. Raghib v. Mahmood Alam and others

2011-03-09

RAKESH TIWARI

body2011
Rakesh Tiwari, J.;- Heard learned counsel for the parties and perused the record. 2. This writ petition has been filed challenging the validity and correctness of the remand order dated 18.1.2011 passed by the Additional District Judge, Court No. 6, Bijnor, allowing S.C.C. Revision No. 36 of 1998: Smt. Aqeela Khatoon Vs. Shakeel Ahmad. 3. Learned counsel for the parties agreed that the point is involved in short and no factual aspects are required to be decided, hence petition may be decided at the admission stage. 4. Contention of learned counsel for the petitioner is that the aforesaid order dated 18.1.2011 is being challenged on two grounds; (1) the revisional court cannot act as court of appeal for coming to a different conclusion than conclusion arrived at by the trial court for appreciating the evidence and direct it to decide the case in the light of observation made by it, (2) the plaintiff had not appeared before the trial court in evidence and in fact the case could not be concluded on the statement of his son who was holder of power attorney of the plaintiff and had entered into witness box in that capacity. 5. In support of his first contention, learned counsel for the petitioner has relied upon paragraph 11 of the judgment rendered in the case of Surendra Kumar Vs. Munna Lal reported in 2007 (4) AWC 3969. Paragraph 11 of the said judgment reads thus: "11. The contention of the learned counsel for the petitioner is that the revisional court after considering the case ought to have left the trial court to take its independent decision in accordance with law. The trial court may after due appraisal of the evidence on record decide the case and arrive at his independent conclusion. By the revisional order the revisional court has not given full liberty to the trial court to arrive at an independent decision, hence this part of the order by which the trial court has been directed to decide the case according to the directions given by the revisional court in the impugned order dated 5.8.2002 is bad and only this part of the revisional court's order is set aside". 6. In support of his second contention, learned counsel for the petitioner has relied upon paragraph 15 of the judgment rendered in the case of Janki Vashdeo Bhojwani and another Vs. 6. In support of his second contention, learned counsel for the petitioner has relied upon paragraph 15 of the judgment rendered in the case of Janki Vashdeo Bhojwani and another Vs. Industrial Bank Ltd. and others reported in 2005 (1) AWC 138 (SC). In paragraph 15, the Court has relied upon case of Vidhyadhar v. Manikrao and another, (1999) 3 SCC 573 , wherein it has been observed that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct". 7. Thereafter, learned counsel for the petitioner has relied upon paragraphs 21 and 22 of the aforesaid judgment in the case of Janki Vashdeo Bhojwani v. Industrial Bank Ltd. (S.C.) (supra), wherein the court has upheld the view taken by Rajasthan High Court in the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) WLC 713, followed and reiterated in the case of Ram Prasad v. Hari Narain and others, AIR 1998 Raj 185 and descended from the view taken in the case of Humberto Luis and another v. Floriano Armando Luis and another, 2002 (2) Bom CR 754. 8. In paragraph 22 aforesaid, it has been held that "the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were co-owners of the property at the said place and dismissed the appeal." 9. Per contra, learned counsel for the respondent has submitted that the revisional court without appreciating the evidence on record came to the different conclusion and has confined it self to the revisional jurisdiction, but has discussed the evidence and the finding recorded by the trial court to show that it were perverse. According to the counsel for the respondent the trial court has not taken into consideration the evidence in proper context and for this reason has remanded the case back to the trial court. According to the counsel for the respondent the trial court has not taken into consideration the evidence in proper context and for this reason has remanded the case back to the trial court. As regards, second contention of learned counsel for the petitioner is concerned, learned counsel for the respondent submits that it is for the court below to appreciate evidence and that the case cited above by the petitioner will not apply in the present case. According to him, it is evident that the evidence was given before the court by the son of the petitioner who had also appeared in the witness box for cross examination. It is stated that merely because the plaintiff adduced statements of his son in support of his case made out in any manner, effect the conclusion of his case, is proved by that witness for the reason that it is not a case of no evidence. 10. In support of his contention, learned counsel for the respondent has relied upon a judgment rendered in the case of Laxmi Kisohre and another v. Har Prasad Shukla, 1979 AWC 746. In paragraph 20 of the said judgment, it has been held by the High Court that if the revisional court finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or re-appraise the evidence in order to determine an issue of fact for itself. 11. After hearing learned counsel for the parties, and on perusal of records, this Court is not inclined to interfere in that part of revisional court's order impugned in the present writ petition by which the matter has only been remanded back to the trial court for decision. However, as the revisional court has in so far directed the trial court to decide the case in the light of observations made in the judgment, that part of the order cannot be sustained and is quashed in view of decision rendered in Surendra Kumar (supra). The trial court on remand of the case will decide the controversy involved in the suit in accordance with law with independent mind after appraisal of record and without being influenced by the observations/jurisdiction of the revisional court in the judgment impugned. 12. The trial court on remand of the case will decide the controversy involved in the suit in accordance with law with independent mind after appraisal of record and without being influenced by the observations/jurisdiction of the revisional court in the judgment impugned. 12. In the result, the writ petition is partly allowed to aforesaid extent. No order as to costs.