Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1645 (RAJ)

Panchayat Teliyan v. Khata Ram Anr.

2012-07-30

R.S.CHAUHAN

body2012
JUDGMENT 1. - The appellants are aggrieved by the judgment dated 3.8.2011 passed by the Additional District Judge, Ratangarh, District Churu, whereby the learned Judge has allowed the appeal filed by the respondents, set aside the judgment and decree dated 22.9.2010 passed by the Civil Judge (Jr. Div.) Doongargarh, and has remanded the case back to the learned trial court. 2. Brief facts of the case are that the appellant No.1, Panchayat Teliya, a group of people of Teliyan Community at Doongargarh, had undertaken the task of uplifting members of their Community. In order to cope with the scarcity of water in the area, the appellant Panchayat collected money from the people of Teliyan caste so as to purchase land for a well from the princely State of Bikaner. On 19.9.1947 the State of Bikaner issued a Patta in favour of Panchayat Teliyan for a land measuring 74X20 sq.ft. But after installation of the pipelines by the Water Works department, the community people stopped using the well; they started using the said land for other purposes. In 1986, the respondents tried to encroach upon said land. The appellants sent a notice to them and also complained against such illegal encroachment to the police at Police Station, Doongargarh. However the dispute could not be settled. Subsequently, the appellants filed a civil suit for recovery of possession and mesne profits before the learned trial court. By judgment dated 22.9.2000, the learned trial court decreed the suit in favour of the appellants. The respondents preferred an appeal before the learned Judge. By judgment and decree dated 03.08.2011 the learned Judge allowed the appeal. The learned Judge set aside the judgment and decree passed by trial Court, remanded the case back to the trial Court with the direction to cross-examine Mohd. Ali (P.W.1) and Harun Mohd. (P.W.2), and to take the documents on record which were filed alongwith the applications under Order 41, Rule 27 CPC by the defendants on 23.07.210 and 25.04.2011. The learned Judge further directed the learned trial court to take evidence on these documents, if the parties so desire, and to decide the case in accordance with law. Aggrieved, the appellants have approached this Court. 3. Mr. The learned Judge further directed the learned trial court to take evidence on these documents, if the parties so desire, and to decide the case in accordance with law. Aggrieved, the appellants have approached this Court. 3. Mr. Arpit Bhoot, the learned counsel for the appellants, has relied upon the case of Rajinder Sharma v. Arpana Sharma [2012(2) RLW 985 (SC)] and on the case of Niranjan Lal v. U.I.T., Alwar & Ors. [ AIR 2007 (Raj.) 18 ] in order to contend that under Order 41 Rules 27 and 28 CPC, the first appellate Court has sufficient power to permit the cross-examination of the witness before it, as well as to take the additional evidence on record. The said power is clearly given under Section 107 read with Order 41 Rules 27 and 28 CPC. Hence, there is no reason for the learned Judge to set aside the judgment and decree and to remand the case back to the trial court. Secondly, that since the respondents have already taken a stand that the property in dispute belongs to them, and was under their possession, they cannot be permitted to bring on record documents which would show that the property in dispute was given by Panchayat Samiti to other persons. If these documents were permitted to be brought on record, it would dilute the case of respondents themselves. 4. On the other hand, Mr. Nitin Trivedi, the learned counsel for the respondents, has contended that the respondents have the right to cross-examine the two witnesses. For, the right to cross-examine is a valuable right, which was denied to them by the learned trial court. Therefore, the learned Judge was certainly justified in remanding the case to the trial court, and in directing that the respondents be permitted to cross-examine the witnesses. Secondly, that even if the documents were to dilute the case of the respondents, nonetheless, it creates a doubt about the veracity of the stand taken by the appellants. Therefore, these documents are essential for the just decision of the case. Hence, the learned counsel has supported the impugned judgment. 5. Heard the learned counsel for the appellant, and perused the impugned order. 6. Two issues were raised before the learned Judge: firstly, whether the right to cross-examine should be given to the respondents or not? Therefore, these documents are essential for the just decision of the case. Hence, the learned counsel has supported the impugned judgment. 5. Heard the learned counsel for the appellant, and perused the impugned order. 6. Two issues were raised before the learned Judge: firstly, whether the right to cross-examine should be given to the respondents or not? Secondly, whether the two documents submitted along with their application under Order 41 Rule 27 CPC should be taken on record or not? The learned Judge is certainly justified in concluding that the right of cross-examination is a valuable one. The said right could not be denied by the learned trial court in a mechanical manner. Therefore, the learned Judge was certainly justified in permitting the cross-examination of the two witnesses. 7. Even if the documents were to dilute the case of the respondents, the question before the learned Judge was whether these documents are essential for the just decision of the case or not? Since these documents throw light on the controversy involved, i.e. whether the land in dispute belongs to the appellants or not, obviously, these documents are relevant for the just decision of the case. Therefore, the learned Judge was equally right in allowing the application under Order 41 Rule 27 CPC and directing that the documents shall be taken on record. 8. However, the question is whether the learned Judge should have exercised the power vested upon him under Order 41 Rule 27 and 28 CPC or not? In the case of Niranjan Lal (supra) this Court had extensively dealt with Section 107 of C.P.C. and with order 41 Rules 23 to 28A of C.P.C.. According to Section 107 C.P.C. the Appellate Court has the power to take additional evidence or to require such evidence to be taken. Moreover, according to Section 107 (2) C.P.C. the Appellate Court has the same powers and can perform the same duties as conferred by the Code on Courts of original jurisdiction in respect of suits instituted therein. Order 41, Rules 23 to 29 of the Code, merely elaborate the powers prescribed by Section 107 C.P.C. This Court has observed as under; 22. The purpose behind the Rules is not to initiate de novo trial. The purpose is also not to prolong the dispute between the parties. Order 41, Rules 23 to 29 of the Code, merely elaborate the powers prescribed by Section 107 C.P.C. This Court has observed as under; 22. The purpose behind the Rules is not to initiate de novo trial. The purpose is also not to prolong the dispute between the parties. Since the judiciary must endeavour to decide the dispute as soon as possible, the appellate Court is expected to decide the case at the appellate stage itself. Therefore, the tendency to remand the case in toto after setting aside the judgment of the trial Court and the tendency to direct a de novo trial is against the tenor of law. The appellate Court is expected to exercise its power within the confines to Rules 23 to 26- A of the Code. Ample powers have been given to the appellate Court under Rules, 27, 28 and 29 of the Code to take additional evidence and to decide the issues re-framed by it. Since the trial Courts are the most overburdened Courts in the judicial hierarchy, the appellate Court, should refrain from remanding the case in toto in a routine manner. What can be done at the appellate stage, need not be remanded back to the trial Courts. After all, the buck has to stop somewhere. 23. The poor litigant cannot be treated as a shuttlecock and forced to run from pilar to post, from Court to Court. The litigant expects the judiciary to decide its case at the earliest. The litigant neither has the financial means, nor the energy to go on a rollercoaster ride of litigations. The judiciary has to be sensitive to the financial condition and to the expectation of the litigant. To prolong a dispute endlessly is not only a disservice to the litigant, but it is an injustice to him. Therefore, this trend of remanding the case back to the trial Court in a mechanical and routine manner has to stop. The learned District Judges, who are experienced and knowledgeable, are expected to do their duty by the litigant. 9. To prolong a dispute endlessly is not only a disservice to the litigant, but it is an injustice to him. Therefore, this trend of remanding the case back to the trial Court in a mechanical and routine manner has to stop. The learned District Judges, who are experienced and knowledgeable, are expected to do their duty by the litigant. 9. In the case of Bechan Pandy v. Dulhin Janki Devi, ( AIR 1976 SC 866 ) , the Hon'ble Supreme Court opined that "to remand a suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial Court and thereafter in appeal. It is time, that the final curtain is drawn and the long meandering course of litigation between the parties is put an end to. The Courts should be loath to entertain a plea, which would have the effect of condemning succeeding generation of families to spend major part of their lives in the protracted litigation." Similarly, in the case of P. Purushootam Reddy v. Pratap Steels Ltd. (2002) 2 SCC 686 the Apex Court cautioned and said, " 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". Although in this case the Apex Court was dealing with the power of the High Court to remand a case back to the trial Court after the Amendment of 1976 in the Code, the caution quoted above equally applies to the District Court. 10. Therefore, this Court is of the opinion that the case should not have been remanded back to the trial court. The learned Judge could and should have invoked his powers under Section 107 read with Order 41, Rules 27 and 28 C.P.C. The learned Judge should cross-examine the witnesses before himself, and should have decided the issue and controversy after taking the additional evidence, oral and documentary, on record. The learned Judge could and should have invoked his powers under Section 107 read with Order 41, Rules 27 and 28 C.P.C. The learned Judge should cross-examine the witnesses before himself, and should have decided the issue and controversy after taking the additional evidence, oral and documentary, on record. Therefore, this Court quashes and set asides the judgment dated 3.8.2011 and directs the learned Judge to call the record back, and to decide the case after giving ample opportunity to the respondents to cross-examine the witnesses and after considering the impact of the additional oral and documentary evidence on record. As the case has been hanging fire ever since 1992, the learned Judge is directed to decide the appeal within a period of six months from the date of the receipt of the certified copy of this judgment. With these directions, this appeal is allowed.Appeal Allowed. *******