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2013 DIGILAW 1252 (BOM)

Ashok Magaswargiya Sah. Bhadekaru Malki Griha Nirman Sanstha Ltd. v. Suresh Sahebrao Kamble

2013-07-08

S.S.SHINDE

body2013
Judgment : 1. This appeal from order takes an exception to the judgment and order passed by the District Judge-1 Beed in R.C.A.No.117/2007 dated 8.10.2012. Since the facts of case are extensively stated in R.C.S.No.52/2000, it is not necessary to repeat the same. As and when it is necessary, this Court will refer the relevant facts. 2. By way of the impugned judgment and order, the lower Appellate Court remanded the matter to the trial court for deciding it a fresh by framing appropriate issues as discussed in reasoning part of the Lower Appellate Court’s Judgment. Applications Exh.35 and Exh. 47 filed by the original appellant are allowed subject to costs of Rs.500/-. Liberty is given to the trial Court to decide the issues by giving opportunity of leading further evidence to both the parties as per law. Both the parties were directed as to remain present before the Trial Court on 1.11.2012. There are other directions as well given by the District Court, Beed. 3. Learned counsel appearing for the appellant herein invited my attention to the issues framed by the Trial Court and submitted that, Trial Court has framed as many as 5 issues for its consideration/determination and extensively dealt with the said issues thereby allowing the parties to lead evidence. It is submitted that upon appreciation of evidence/material placed on record by the parties certain findings are recorded by the trial Court. It is submitted that the trial Court has recorded that respondent no.1 herein is the encroacher on the suit land. The contention of the respondent no.1 that he has become member of the appellant Co-operative Society has been turned down by the Trial Court. Learned Counsel also invited my attention to other findings recorded by the trial court and submitted that the Lower Appellate Court without adverting to each issue framed by the trial Court and finding rendered thereupon, proceeded to decide the appeal. It is submitted that Lower Appellate Court ought to have considered the evidence on record and should have decided the appeal either way. It is submitted that in absence of any specific ground in appeal to frame additional issues, Lower Appellate Court proceeded to frame additional issues and remanded the matter back to the Trial Court for fresh trial. It is submitted that Lower Appellate Court ought to have considered the evidence on record and should have decided the appeal either way. It is submitted that in absence of any specific ground in appeal to frame additional issues, Lower Appellate Court proceeded to frame additional issues and remanded the matter back to the Trial Court for fresh trial. It is submitted that, such remand order would be beyond the scope of provisions of Order 41 Rule 23A of the Civil Procedure Code. It is submitted that an application filed by the respondent no.1 under Order 41 Rule 27 of the Civil Procedure Code and also an application for amendment of the written statement was allowed by the Lower Appellate Court at the stage of final hearing of the appeal without affording opportunity to the appellants to put forth their contention. Learned counsel for the appellant placed reliance upon the reported judgment of this court in the case of Kattukandi Edathil Krishnan and Another Vs. Kattukandi Edathil Valsan and Others reported in 2006 (9) Supreme Court Cases 166 and in particular paragraph no.5 thereof. It is submitted that the Appellate Court ought to have considered the evidence on record for the purpose of disposing of the case and should have allowed the appeal or confirmed the judgment and order of the Trial Court after re-appreciation of the evidence. Therefore, relying upon the grounds taken in appeal memo, annexures thereto, submissions advanced across the bar and judgment [cited Supra], learned counsel for the appellant submits that Appeal From Order deserves to be allowed and hence, same may be allowed. 4. On the other hand, learned counsel appearing for respondent no.1 invited my attention to the additional issues framed by the Lower Appellate Court and submitted that those issues were necessary for appropriate adjudication of the suit. However, those issues were not framed by the trial court. It is submitted that upon considering the facts and law involved in the case, Lower Appellate Court is empowered to frame the additional issues. It is submitted that it is not necessary that parties would specifically plead for framing particular issue and it is for the appellate Court to frame additional issues, if it is necessary in the facts and circumstances of the case. It is submitted that it is not necessary that parties would specifically plead for framing particular issue and it is for the appellate Court to frame additional issues, if it is necessary in the facts and circumstances of the case. Learned counsel for respondent no.1 also invited my attention to paragraph no.14 of the impugned judgment and submitted that brief reasons are assigned by the Appellate Court which laid to framing of additional issues. Learned counsel invited my attention to provisions of Order 41 Rule 23A of Civil Procedure Code and submitted that it is not the case that the Lower Appellate Court has remanded the matter back to the trial court in absence of any provision to that effect. It is submitted that in view of the provisions of Order 41 Rule 23-A of Civil Procedure Code, in a proper case, where, retrial considered necessary, the Appellate Court can remand the matter back to the trial court for retrial. It is submitted that the appellants have not placed on record the copies of the application which was filed by the respondent no.1 under Order 41 Rule 27 and also copy of the application filed for amendment in written statement. Learned counsel relying upon the grounds taken in the appeal memo, before Lower Appellate Court and reasons assigned by the Lower Appellate Court submits that in the peculiar facts of the case in hand additional issues which are framed by the Lower Appellate Court are necessary to be tried and therefore, Lower Appellate Court has rightly ordered retrial wherein the parties will get opportunity to lead evidence and therefore no prejudice will be caused to the appellants herein. 5. I have given careful consideration to the submissions of the learned counsel appearing for the appellants and counsel appearing for respondent no.1. With their assistance, I have perused entire material placed on record, judgment of the Supreme court cited by the learned counsel for the appellant and finding recorded by the trial court and also by the Lower Appellate Court. Upon perusal of the paragraph no.7 of the judgment of the trial court, it appears that trial court framed as many as five issues for its determination/consideration. First issue was that, Does plaintiff prove encroachment by the defendants on the suit house. It is held by the trial court that said issue has been proved by the plaintiffs. Upon perusal of the paragraph no.7 of the judgment of the trial court, it appears that trial court framed as many as five issues for its determination/consideration. First issue was that, Does plaintiff prove encroachment by the defendants on the suit house. It is held by the trial court that said issue has been proved by the plaintiffs. Another issue was framed that, Is the plaintiff entitle for possession and mesne profit. Said issue is partly answered in affirmative. Other issues are also tried and answered by the trial court. Issue of jurisdiction has also been considered by the trial court. Upon careful perusal of the findings recorded by the trial court, there is no doubt that on all issue and in particular issue no.1, the trial court has recorded the detailed findings. Whether respondent no.1 was member of the appellant society, has also been answered by detailed discussion by the trial court. In paragraph No.14 of the judgment trial court has discussed about claim of the respondent no.1, that he is legal heir of Sahebrao. Therefore, there is a detailed discussion by the trial court and therefore, findings on each issue have been recorded by the trial court. 6. It is true that if case is made out, the Appellate Court can exercise the powers under Order 41 Rule 23-A of Civil Procedure Code and remand the matter back to the trial court. However, in the present case, upon careful perusal of judgment of the Lower Appellate Court, it appears that Lower Appellate Court framed only two points for its determination. Firstly, Whether matter requires to be remanded to trial court as proper issues are not framed and in view of the order passed in this Judgment on Exh.35 and 47? Said point has been answered in the affirmative. Except this point, there is no other substantial point framed by the Lower Appellate Court for its determination. Lower Appellate Court recorded reasons in paragraph no.14 of the Judgment and thereafter framed the additional issues. There is no discussion why issues framed by the trial court are not proper or findings rendered thereupon are in adequate, insufficient, perverse and really said findings are recorded without taking into consideration the evidence placed on record by the parties. Therefore, in the light of discussion herein above, this appeal from order would raise following substantial question of law for consideration. 1. Therefore, in the light of discussion herein above, this appeal from order would raise following substantial question of law for consideration. 1. Whether Lower Appellate Court did frame all necessary points for its determination as required under Order 41 Rule 31 of Civil Procedure Code? 2. Whether Lower Appellate Court has referred to all the issues and findings rendered thereupon by the trial court before framing additional issues in paragraph no.14 of the impugned judgment? 3. Whether in the facts and circumstances of the present case, remand of the matter for retrial was necessary in the light of provisions of Order 41 Rule 23A of Civil Procedure Code? 4. Whether directions/observations given in clause No.II in operative part of the Appellate Court's order can sustain in view of the fact that remand order should be very specific? 5. Whether Lower Appellate Court was justified in framing the issues when there was no specific ground taken by the original appellant in appeal Memo praying therein for framing such issues? 6. Whether the Lower Appellate Court is empowered to decide the appeal by itself on the basis of evidence on record, and to take decision either by reversing the decree or by confirming the same? 7. Whether the lower appellate Court can exercise the powers like court of Original jurisdiction in view of the provisions of Section 107 (2) of Civil Procedure Code? 7. On the substantial questions of law framed herein above, Admit. On admission the learned counsel for the respondent no.1 waives notice. 8. Upon careful perusal of points framed by the Lower Appellate Court there is no doubt that all necessary points have not been framed by the Lower Appellate Court for its determination. Only one point is framed whether matter requires to be remanded to trial court as proper issues are not framed and in view of the order passed in this Judgment on Exh. 35 and 47. If the Lower Appellate Court was convinced that, certain issues are not framed by the trial court and trial court has not considered the material placed on record, in that case, after proper discussion and after revisiting the findings recorded by the trial court, it was possible for the Lower Appellate Court to record conclusion that a particular issue arise for consideration, however, trial court has not framed the same. Upon careful perusal of paragraph no.14 of the impugned judgment, there is no discussion whatsoever about issues framed by the trial court and findings rendered thereupon. It was incumbent upon the lower Appellate Court to advert to the issues framed by the trial court and also findings rendered thereupon and thereafter only record the conclusion that certain issue or issues are not considered by the trial court and therefore, it is necessary to remand the matter back to the trial court for retrial. Upon careful perusal of Order 41 Rule23A of Civil Procedure Code, said provisions contemplates that if retrial is “considered necessary” in that case only there should be order of remand for retrial. In order to give true meaning to words “considered necessary” the Court has to consider the evidence on record, issues framed by the trail court and finding recorded by the trial court on said issues and after such exercise is done then only, proceed to pass order of remand within permissible limits in law. However, it appears that no such exercise has been done by the Lower Appellate Court. 9. In paragraph No.16 of the impugned judgment, Lower appellate Court has considered two applications at Exh.35 and Exh.47 filed by the original appellant and allowed the same. Even learned counsel for the original appellant does not dispute the position that, application under Order 41 Rule 27 of Civil Procedure Code is required to be heard separately. On the other hand, I find considerable force in the argument of the learned counsel appearing for the appellant that one Mr. Bansidhar was examined as witness during the trial of the suit, and it was possible for the original appellant to cross examine him. However, it appears that belated attempt is made by the original appellant to file application for amendment of the written statement in suit. 10. By way of clause ‘2’ the lower appellate Court has given general directions. Bansidhar was examined as witness during the trial of the suit, and it was possible for the original appellant to cross examine him. However, it appears that belated attempt is made by the original appellant to file application for amendment of the written statement in suit. 10. By way of clause ‘2’ the lower appellate Court has given general directions. Clause two of the operative part of the order of the appellate court, reads thus :- “The decree passed in RCS No.52/2000 is hereby set aside and matter is remanded to the trial court for deciding it afresh by framing appropriate issues as discussed in reasoning part.” Aforesaid clause from the operative part of the order gives impression that even trial court has granted liberty to frame further issues in addition to the issues which find place in paragraph no.14 of the impugned judgment. Such remand order is not permissible. 11. Subsection (2) of Section 107 of Civil Procedure Code reads thus:-107. (2) : - “Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” Upon careful reading of provision of S.107 (2) of Civil Procedure Code, it is abundantly clear that Appellate Court possess the same powers and shall perform the same duties as are conferred and imposed upon the Courts of original jurisdiction in respect of suits instituted. Therefore, in the facts of the present case, it was possible for the lower appellate Court to invoke S.107(2) and record the additional evidence if any and decide the appeal on merits. 12. Therefore, in the light of the discussion herein above this court is of the considered opinion that, impugned judgment and order cannot sustain and hence, same is quashed and set aside. RCA No.117/2007 is restored to its original file. District Judge – 1, Beed is directed to hear the said appeal afresh in accordance with law after giving opportunity to the parties to put forth their contention. The Lower Appellate Court is directed to hear and decide the appeal finally as expeditiously as possible however within SIX MONTHS from today. It is needless to clarify that applications at Exh.35 and Exh.47 are restored to its original file. The Lower Appellate Court is directed to hear and decide the appeal finally as expeditiously as possible however within SIX MONTHS from today. It is needless to clarify that applications at Exh.35 and Exh.47 are restored to its original file. Lower Appellate Court to decide the same in accordance with law. 13. In view of disposal of Appeal From Order, pending Civil application, if any, does not survive and stands disposed of.