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2013 DIGILAW 1313 (RAJ)

Gangaram v. Shree Lal

2013-07-18

BELA M.TRIVEDI

body2013
Hon'ble TRIVEDI, J.—The present appeal has been filed by the appellants-defendants challenging the order dated 07.02.2005 passed by the Additional District Judge, Dholpur in Regular Civil Appeal No.13/02 (hereinafter referred to as “the appellate court”), whereby the appellate court while setting aside the judgment & decree dated 02.01.2002 passed by the Civil Judge (Sr. Div.), Dholpur (hereinafter referred to as “the trial court”) in Civil Suit No.56/93, remanded the matter back to the trial court for deciding the suit afresh after giving opportunity of hearing to both the parties. 2. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the suit seeking recovery of possession and demolition of construction in the suit property, and also for the permanent injunction. It was alleged inter alia by the respondents-plaintiffs that they had purchased the plot in question on 14.11.1967 from one Shri Raghuveer Prasad, who had purchased the same from one Ram Kishan on 13.01.1962 and that the said Ram Kishan had purchased the said plot from the Municipal Board, Dholpur in September 1946. According to the respondents-plaintiffs, they had sought the permission from the Municipal Board, Dholpur to construct the house and shops, which permission was granted on 22.09.1971, and thereafter the house and shops on the plot were constructed as shown in the map annexed to the plaint. It was further alleged in the plaint that the defendants had put up illegal construction on the disputed plot by making encroachment, and therefore the suit for demolition of the said construction and possession of the disputed plot as well as for the permanent injunction was filed by the respondents-plaintiffs. The said suit was resisted by the appellants-defendants by filing the written statement contending inter alia that the construction was put up by the defendants on the disputed plot in the year 1993 and the site plan and the boundaries shown by the plaintiffs were not showing the correct position. The appellants had also denied the allegation that they were intending to close the doors of the respondents by making encroachment over the land of the respondents. 3. The trial court after taking into consideration the evidence on record, had partly decreed the suit of the respondents and restrained the appellants from closing the doors marked as 'X & Y' in the site plan (Exhibit-10) vide the judgment & decree dated 02.01.2002. 3. The trial court after taking into consideration the evidence on record, had partly decreed the suit of the respondents and restrained the appellants from closing the doors marked as 'X & Y' in the site plan (Exhibit-10) vide the judgment & decree dated 02.01.2002. The trial court dismissed the other prayers of the respondents-plaintiffs. Being aggrieved by the said judgment & decree, the respondents had preferred the appeal before the appellate court. The appellate court without reversing the decree passed by the trial court, set aside the judgment and decree dated 02.01.2002 passed by the trial court and remanded the matter back to the trial court for deciding the suit afresh, vide the order 07.02.2005. The appellants being aggrieved by the said order has preferred the present appeal under Order XLIII Rule 1 (U) of CPC. 4. The learned counsel Mr. Raj Kamal Gaur, for the appellants placing heavy reliance on the decisions of the Apex Court in case of P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd., (2002) 2 Supreme Court Cases 686 and Municipal Corporation Hyderabad vs. Sunder Singh, 2008(2) WLC (SC) Civil 504, has submitted that after the amendment of 1976, the scope of remanding the case is very limited and the present case being not covered under any of the situations contemplated under Rules 23 or 23-A of Order XLI, the appellate court should not have remanded the matter to the trial court. He further submitted that the appellate court has directed the trial court to appoint the Commissioner for site inspection and on the basis of that report to decide the ownership of the disputed plot, which is not permissible. Learned Senior Counsel Mr. J.P. Goyal for the respondents also fairly submitted that the case did not fall under any of the situations as contemplated under Rules 23 or 23-A, Order XLI, and therefore the matter should not have been remanded to the trial court. However, he has submitted that the appellate court be directed to decide the appeal on merits, and take into consideration all the contentions raised by the respondents in the appeal. 5. Before adverting to the contentions raised by the learned counsels for the parties, it would be necessary to reproduce the scope of remand as laid down by the Apex Court in case of P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd., (2002) 2 SCC 686 . 5. Before adverting to the contentions raised by the learned counsels for the parties, it would be necessary to reproduce the scope of remand as laid down by the Apex Court in case of P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd., (2002) 2 SCC 686 . It has been held in para 10 as under:- “10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati vs. Sushila Mahendra Nanavati (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23-A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. 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.” 6. In view of the above stated legal position, the powers of remand could be exercised by the appellate court either under Rule 23 or under Rule 23-A of Order XLI. While Rule 23 could be exercised when the suit is disposed of by the trial court on a preliminary issue, Rule 23-A could be invoked when the suit is disposed of otherwise than on preliminary point and when the decree is reversed in appeal, and the retrial is found necessary by the appellate court. While Rule 23 could be exercised when the suit is disposed of by the trial court on a preliminary issue, Rule 23-A could be invoked when the suit is disposed of otherwise than on preliminary point and when the decree is reversed in appeal, and the retrial is found necessary by the appellate court. In the instant case, from the submissions made by the learned counsels for the parties, and to the impugned order passed by the appellate court, it transpires that the appellate court has remanded the case to the trial court, without reversing the findings recorded by the trial court on the issues framed by the trial court and without finding the retrial necessary. Admittedly, the suit having not been decided by the trial court on a preliminary issue, the provision contained in Rule 23 did not apply. So far as the Rule 23A is concerned, it reads as under:- “23A. Remand in other cases:-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. 7. The said provision contained in Rule 23-A, Order XLI could have been invoked by the appellate court only when the decree was reversed in appeal and the retrial was considered necessary. In the instant case, the appellate court has neither reversed the decree nor has found re-trial necessary, and therefore the remand of the case was not made by the appellate court in consonance of Rule 23-A, Order XLI. 8. So far as the Rule 25 is concerned, it cannot be gainsaid that the appellate court has power to refer the issues that may be framed by it, to the trial court for taking the additional evidence thereon and in such case, the trial court has to proceed to try such issues and return the evidence to the appellate court together with its findings thereon and the reasons therefor. However, in the instant case, the appellate court has also failed to frame any issue which according to the appellate court, the trial court had failed to frame, nor has it called for the additional evidence from the trial court on such issue, and hence Rule 25 also had no application. 9. However, in the instant case, the appellate court has also failed to frame any issue which according to the appellate court, the trial court had failed to frame, nor has it called for the additional evidence from the trial court on such issue, and hence Rule 25 also had no application. 9. On the contrary, the appellate court has interalia directed the trial court to appoint the Commissioner for site inspection and decide the ownership of the disputed plot on the basis of the report of the Commissioner. As rightly submitted by learned counsel Mr. Gaur, the Commissioner for local inspection cannot be appointed for collecting the evidence, muchless the Court can decide the ownership of the parties on the basis of such report of Commissioner. The impugned order passed by the appellate court, therefore, suffers from gross illegality and infirmity which deserves to be quashed and set-aside. 10. In that view of the matter, the impugned order dated 07.02.2005 passed by the appellate court is set-aside. Since the appeal has not been decided by the appellate court on merits, the appellate court is directed to decide the appeal on merits and in accordance with law. It is needless to say that the appellate court shall take into consideration the points involved in the appeal before it including the contentions raised by both the parties. The appeal stands allowed accordingly.