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2012 DIGILAW 1435 (PAT)

Ansarul Haque v. Bibi Shakila

2012-10-09

AJAY KUMAR TRIPATHI

body2012
JUDGMENT 1. Defendants are the appellants in the present appeal. They have challenge the judgment dated 6th of April, 2010, passed by 3rd Additional District Judge, Naugachhia in Title Appeal No. 136 of 2006. 2. The main thrust of the argument in support of the appeal is that the lower appellate court ought not to have remanded the matter to the trial court, after formulating the issue, when on most of the aspects and findings given by the trial court, the lower appellate court was in agreement with those issues or findings. 3. Suit was for a partition, which was sought to be resisted on the ground that the property in question had already been partitioned in the sense that there were registered deeds of gifts, executed by Sheikh Imamul Haque, the common ancestor to the parties to the dispute. So far as the registered deed of gift is concerned, there is unanimity of finding, both by the trial court as well as by the appellate court on the correctness thereof. Some dispute remained with regard to the so-called oral gift made by Sheikh Imamul Haque, just before the municipal survey was being conducted. The oral gift part of the story has become the bone of contention and the property shown in schedule-B remained a bone of contention between the parties, which according to the appellate court was necessary to be decided in the matter. 4. Counsel for the appellant submits that there are a series of decisions, which have been rendered by various Courts, including Patna High Court as well as the Apex Court, which have consistently held a view that an order in remand by the appellate court should not ordinarily be resorted to, merely because it was considered that the reasoning of the trial court to be wrong. The said remand delays and prejudices the parties involved and the litigations gets protracted. Reliance has been placed in the case of Ram Vinod Roy & Another vs. Mostt. Ram Sumari Devi & Ors., reported in 2004(2) PLJR 755 ; Md. Moid @ Abdul Moid & Ors. vs. Maha Sundari Devi & Ors., reported in 2011 (3) PLJR 221 ; as well as the Apex Court decision in the case of Ashwin kumar K. Patel vs. Upendra J. Patel and Others, reported in (1999)3 SCC 161 (emphasis is on paragraph-B of the said decision). 5. Moid @ Abdul Moid & Ors. vs. Maha Sundari Devi & Ors., reported in 2011 (3) PLJR 221 ; as well as the Apex Court decision in the case of Ashwin kumar K. Patel vs. Upendra J. Patel and Others, reported in (1999)3 SCC 161 (emphasis is on paragraph-B of the said decision). 5. Counsel, however, for the respondents submits that the lower appellate court has the requisite power and authority to remand matters for reconsideration before the trial court, looking at the amendment, which has been incorporated in the Code of Civil Procedure, especially Order 41 Rule 23A, which was inserted in the year 1976, w.e.f. 1st of February, 1977. For the proposition he relies on two decisions. One is the case of REMCO Industries Workers House Building Cooperative Society vs. lakshmeesha M. and others, reported in AIR 2003 SC 3167 . Attention of the Court was drawn to paragraph 18 of the said decision. Other decision in question is a Division Bench decision of Patna High Court, rendered in the case of Balmiki Singh Vs. Lalpari Devi, reported in AIR 1981 Patna 161 [1981 PLJR 244]. 6. The propositions, which have been relied upon by the two respective parties are not in dispute. The issue is the applicability of the two propositions in the given bundle of facts. In the present case, there has been a keen contest between the parties. Findings have been given on the eight issues, which came to be framed by the trial court. All the issues have been answered, but the appellate court, while dealing with the appeal despite accepting most of the aspects of findings, given by the trial court, had reservation with regard to the issue relating to the oral gift, which in the opinion of the lower appellate court was required to be formulated and answered. 7. The counsel for the appellant submits that the lower appellate court itself has accepted in its order while dealing with the point no. 2 "So to my mind the issue on the point of oral gift was necessary and it is also required distinct finding after discussing the evidence available on the record. But the learned court below has not done so. So, the point is decided accordingly." 8. 2 "So to my mind the issue on the point of oral gift was necessary and it is also required distinct finding after discussing the evidence available on the record. But the learned court below has not done so. So, the point is decided accordingly." 8. From the said observation as well as the issue, which has been formulated by the lower appellate court there was no occasion to remand the entire suit. The matter which required consideration could have very well have gone into by the lower appellate court. It could have taken up this aspect of the matter from the evidence available on record and decided the issue. 9. After hearing the parties, the Court comes to a considered opinion that this is a suit, which has its origin in the year 1993. The matter has taken almost two decades to be decided by the trial court and now the remand in the given facts and circumstances will surely inordinately delay the decision and the dispute between the parties. Since the lower appellate court had already expressed its opinion on most of the aspects of the matter and since it has already accepted that there was evidence on record, as such on the aspect of oral gift as well. Merely because the trial court did not formulate the said issue as an issue, it was not necessary for the lower appellate court to remand the matter by sending the entire suit to the court below for re-trial, which amounts to a de novo trial. 10. The Court is, therefore, of the considered opinion that the order of the lower appellate court with regard to the order of remand requires interference, the said order, dated 6th of April, 2010 is set aside. 11. The appeal is allowed. The lower appellate court is directed to decide the matter at its own level by going through the evidence, which has already come during the course of the trial.