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2012 DIGILAW 198 (CHH)

Dwarika Prasad Agrawal v. Satyanarayan

2012-08-03

N.K.AGARWAL

body2012
ORDER 1. This is defendant's miscellaneous appeal filed under Order 43 Rule l(u) of the Code Of Civil Procedure (for short "CPC") against the remand order dated 24.11.2010 passed by Additional District Judge, Rajandgaon in Civil Appeal No. 3-A/2010. 2. Brief facts of the case are: Respondent/plaintiff instituted a suit for declaration and permanent injunction. 3. The trial Court dismissed the suit vide judgment and decree dated 14.07.2008. 4. The respondent/plaintiff filed an appeal. Application under Order 41 Rule 27 of CPC for admission of documents as additional evidence was also filed. 5. The First Appellate Court allowed the respondent's application filed under Order 41 Rule 27 of CPC and remanded back the matter to the trial Court after setting aside the judgment and decree passed by it with a direction to decide the suit afresh after giving opportunity to both the parties to lead evidence in support and rebuttal of the documents allowed by it in the appeal. Hence, this appeal. 6. Shri P.K.C. Tiwari, learned Senior Counsel with Shri Rakesh Thakur, counsel appearing for the appellant assailed the judgment/order on two counts:(i) Learned trial Court should have, in the facts and circumstances of the case, rejected the application holding that plaintiff/respondent has failed to substantiate that notwithstanding the exercise of due diligence, the documents could not be traced-out and filed before decision of the suit. (ii) In view of provision contained in Rule 28 of Order 41 of CPC : there seems no propriety in setting aside the judgment and decree of the trial Court and remanding the whole case for reconsideration. 7. Per contra, Shri Sanjay K. Agrawal and Shri Sourabh Sharma, learned counsel appearing for the respondent supported the judgment/order impugned and submitted in the facts and circumstances of the case, the judgment/order impugned does not call for any interference. 8. I have heard learned counsel appearing for the parties and perused the record of the First Appellate Court including judgment/order impugned. 9. Indisputably, the documents filed by the respondent/plaintiff are public documents. 8. I have heard learned counsel appearing for the parties and perused the record of the First Appellate Court including judgment/order impugned. 9. Indisputably, the documents filed by the respondent/plaintiff are public documents. The learned court below, after considering the grounds taken by the respondent/plaintiff in the application filed under Order 41 Rule 27 of CPC, after coming to a conclusion that despite the exercise of due diligence, the above documents could not be traced out and filed by the respondent before decision of the suit and are also necessary for just decision of the case, allowed the respondent to file the documents as additional evidence in appeal. 10. The appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." (Please see North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (DEAD) by LRs. reported in (2008) 8 SCC 511 )). 11. Therefore, the court below, in its discretion, after considering the relevancy of the documents, has rightly allowed the respondent to file the documents in question as additional evidence in the appeal, which in the considered opinion of this court needs no interference in the instant miscellaneous appeal. 12. Nevertheless, the court below has certainly fallen in error in remanding the case for reconsideration after setting aside judgment and decree. 13. As per Rule 28 of Order 41 of CPC : Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. 14. It nowhere prescribes for wholesome remand as in case of remand under Order 41 Rule 23 and 23-A after setting aside the judgment and decree. 15. The Supreme Court considering the provision Order 41, Rule 25 of CPC in case of Gogula Gurumurthy and others Vs. Kurimeti Ayyappa (1975)4 SCC 458 has held in paragraph 5 as under :- "When a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance." 16. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance." 16. The same view has been reiterated by the Supreme Court in case of Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another (2008) 12 SCC 372 . 17. Considering the provision of Order 41 Rule 28 of CPC, Supreme Court in case of H.V. Vedavyasachar Vs. Shivashankara & anr. 2010 AIR SCW 468 as held: High Court could not have directed the trial Court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41, Rule 23, Order 41 Rule 23-A or Order 41, Rule 25 of the Code. None of the said provisions have any application in the instant case. 18. Applying the of ratio of law laid down by the Supreme Court in the above referred cases, it is crystal clear that the Court below has legally erred in directing the trial Court to decide the suit afresh after taking additional evidence and is not sustainable in law. I, therefore, in modification of the order passed by the court below direct the trial Court as under:- (i) The learned trial Court upon recording the evidence as directed by the First I Appellate Court shall transmit the records to the First Appellate Court with a copy of its report annexed thereto. (ii) Such an exercise by the learned trial Court must be completed within a period of three months from the date of communication of this order. (iii) The First Appellate Court must dispose of the first appeal on receipt of the said order as also the evidence as adduced as expeditiously as possible. 19. In the facts and circumstances of this case, there shall be no order as to costs. 20. The appeal is disposed of, accordingly. Appeal Allowed.