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2014 DIGILAW 1748 (HP)

Ramesh Chand v. Kamli Ram

2014-11-26

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, Judge In the instant appeal, following points arise for consideration: 1. As to whether after framing of additional issues, the lower Appellate Court was right in remanding the matter for consideration afresh on all issues, by setting aside the judgment and decree so passed by the trial Court or not? 2. As to whether the present appeal so filed under the provisions of Order 43 Rule 1-A of the Code of Civil Procedure, assailing the order of remand, is legally maintainable or not? 2. Having heard learned counsel for the parties as also perused the record, this Court is of the considered view that the issues arising for consideration are no longer res-integra. 3. Appellant Ramesh Chand, hereinafter referred to as the plaintiff, filed a suit for permanent prohibitory injunction against the defendantsrespondents, hereinafter referred to as the defendants. Based on respective pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled for injunction? OPP 2. Whether the plaintiff has no locus-standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether there is no cause of action to file the present suit? OPD. 5. Relief. 4. After appreciation of evidence on record, trial Court found favour with the evidence so led by the plaintiff and decided the issues in his favour, decreed the suit vide judgment and decree dated 27.11.2013, passed in Civil Suit No.145 of 2009, titled as Ramesh Chand versus Kamli Ram and others, restraining the defendants from interfering in the function of Kardar of Devta Markandey Rishi Ji and also taking away the Devta for the function from temple Percha without permission of the Kardar. 5. Lower Appellate Court, vide impugned order dated 11.3.2014, passed in Civil Appeal No.114 of 2013, titled as Kamli Ram and others v. Ramesh Chand, set aside said judgment and decree, and by framing the following additional issues, remanded the matter for consideration afresh, on all the issues: 4(a) Whether plaintiff is Kardar of Devta Markandey Rishi? OPP 4(b) Whether defendant No.1 has been authorized by the District Magistrate, Kullu as duly appointed Kardar of Devta Markandey Rishi? OPP 4(b) Whether defendant No.1 has been authorized by the District Magistrate, Kullu as duly appointed Kardar of Devta Markandey Rishi? OPD Operative portion of the impugned order reads thus: “For the reasons, recorded herein above, the appeal filed by the appellants is allowed and the judgment and decree passed by the learned trial Court in civil suit No.145 of 2009 dated 27.11.2013 is hereby set aside. The case is remanded to the learned trial court with the directions to give opportunity to both the par5ties to lead evidence on the aforesaid amended issues framed by this court and, thereafter, to take into account all the evidence together and decide the suit afresh. Parties shall bear their own costs. However, parties through counsel are directed to appear before the learned trial Court on 25.03.2014. The record of the learned trial Court be returned with a copy of this judgment and the file of this Court after due completion be consigned to record room.” 6. In somewhat similar circumstances, this Court in Nagar Mal and another v. Bimal Kumar and another, Latest HLJ 2005(HP) 679, deprecated the practice of wholesale remand of the case by the appellate Court, more so keeping in view the provisions of Order 41 of the Code of Civil Procedure. 7. A Division Bench of this Court in Prem Kumar and others v. Parkash Chand and others, 2002(3) SLC 358, while dealing with an identical issue, held that:- “6. Learned Counsel for the appellants contended that the directions issued by the learned Additional District Judge are not in accordance with the provisions of Rules 23, 23-A or 25 of Order 41, Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). He submitted that the appellate Court can make an order of remand either under Rule 23 or 23-A or Rule 25 of Order 41 of the Code. 7. So far as Rule 23 is concerned, the said provision obviously is not applicable to the case in hand in view of the fact that the trial Court had not disposed of the suit on a preliminary point. The question, therefore, is either the order is passed by the first appellate Court under Rule 23-A or Rule 25 of Order 41 of the Code. But, in either case, contended the learned Counsel, it was obligatory on the part of the first appellate Court to frame issue(s). The question, therefore, is either the order is passed by the first appellate Court under Rule 23-A or Rule 25 of Order 41 of the Code. But, in either case, contended the learned Counsel, it was obligatory on the part of the first appellate Court to frame issue(s). If the first appellate Court was of the view that the decree passed by the trial Court was liable to be reversed which had been passed on merits, it was open to the appellate Court if it thought fit to remand the matter by directing what issue or issues should be framed in the case so remanded and by sending a copy of the judgment or order to the Court from whose decree the appeal was preferred, i.e., to the trial Court. But the said course has not been adopted by the first appellate Court. Similarly, Rule 25 has also not been invoked inasmuch as it was incumbent upon the first appellate Court to frame issue or issues and refer the same to the trial Court from whose decree the appeal is preferred by directing the said Court to take additional evidence if required, proceed to try such issue or issues and return the evidence to the appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate Court. That is, however, not done. Hence, in either case, the order passed by the first appellate Court deserves to be quashed and set aside. 8. We find considerable force in the argument of the learned Counsel for the appellants. In our opinion, in either case, i.e. either under Rule 23-A or under Rule 25 of Order 41 of the Code, the first appellate Court ought to have framed additional issue(s) and ought to have issued necessary directions. In our considered opinion, the order passed by the first appellate Court is not in conformity with law. It is, therefore, liable to be quashed and set aside. Accordingly, the appeal filed by the appellants stands allowed. The order passed by the Additional District Judge, Mandi, dated 30th June, 2001 is hereby quashed and set aside by directing the appellate Court to pass an appropriate order by framing necessary issue(s) and by making necessary directions to the trial Court. In the facts and circumstances of the case, no order as to costs.” (Emphasis supplied) 8. The order passed by the Additional District Judge, Mandi, dated 30th June, 2001 is hereby quashed and set aside by directing the appellate Court to pass an appropriate order by framing necessary issue(s) and by making necessary directions to the trial Court. In the facts and circumstances of the case, no order as to costs.” (Emphasis supplied) 8. Lower appellate Court, rather than setting aside the judgment and decree, without adjudicating the issues on merit and remanding the matter for trial and consideration of all issues, ought to have resorted to the provisions of Order 41 Rule 25 of the Code of Civil Procedure. (See: Jabbar Singh v. Shanti Swaroop, 2006 (3) SLC 58). 9. Thus, in the instant case, order of wholesale remand is legally unsustainable. Point No.1 is thus answered accordingly. 10. While contending that the impugned order dated 11.3.2014, passed by the lower appellate Court, is not a decree, so as to fall within the ambit and scope of 'decree’, so defined in Section 2(2) of the Code of Civil Procedure, Mr. Sanjeev Kuthiala, learned counsel for the plaintiff, has rightly invited attention of this Court to the decision rendered by the Hon’ble the Supreme Court of India in Mangluram Dewangan v. Surendra Singh and others, (2011) 12 SCC 773 , wherein it has been held as under: “11. We may next consider the remedies available to an applicant whose application under Order 22 Rule 3 of the Code, for being added as a party to the suit as legal representative of the deceased plaintiff, has been rejected. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under: (i) Where the order is a 'decree' as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code). (ii) When the order is not a 'decree', but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal). (ii) When the order is not a 'decree', but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal). (iii) If the order is neither a 'decree', nor an appealable 'order' enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section. 12. When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to fulfillment of the conditions contained in that section and Order 47 Rule 1 of the Code. Be that as it may. The difference between a 'decree' appealable under section 96 and an 'order' appealable under section 104 is that a second appeal is available in respect of decrees in first appeals under section 96, whereas no further appeal lies from an order in an appeal under section 104 and Order 43, Rule 1 of the Code. The question for consideration in this case is whether the order dated 31.8.1996 of the trial court dismissing an application under Order 22 Rule and consequently dismissing the suit is an order amenable to the remedy of appeal or revision. If the remedy is by way of appeal, the incidental question would be whether it is under section 96, or under section 104 read with Order 43, Rule 1 of the Code. 13. Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court. The word 'decree' is defined under section 2(2) of the Code thus: "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The word 'decree' is defined under section 2(2) of the Code thus: "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;" 14. A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a 'decree' : (i) there should be an adjudication in a suit; (ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it; (iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and (iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default. (emphasis supplied)” 11. In fact, while dealing with identical issue, the said Court in Jegannathan v. Raju Singamani and another, (2012) 5 SCC 540 , has held that an appeal against an order of wholesale remand would lie under clause (u) of Rule 1 Order 43 of the Code of Civil Procedure. 12. While opposing maintainability of the appeal, Mr. G.S. Rathore, learned counsel for the respondents, has referred to and relied upon decisions rendered by Hon’ble the Supreme Court of India in A. Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 ; and Narayanan v. Kumaran and others, (2004) 4 SCC 26 . I have perused the same. The ratio of law laid down therein is squarely inapplicable to the given facts and circumstances. 13. I have perused the same. The ratio of law laid down therein is squarely inapplicable to the given facts and circumstances. 13. In fact, Court had the occasion to deal with Narayanan (supra) in Jegannathan (supra), and observed as under: “11. The High Court relied upon a decision of this Court in the case Narayanan Vs. Kumaran & Ors. (2004) 4 SCC 26 in holding that Civil Miscellaneous Appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100. 12. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable.” 14. The appeal is legally sustainable. Point No.2 is answered accordingly. 15. Thus, for the aforesaid reasons, appeal is allowed and the impugned order dated 11.3.2014, passed in Civil Appeal No.114 of 2013, titled as Kamli Ram and others v. Ramesh Chand, is quashed and set aside. Matter is remanded back to the lower appellate Court with a direction to pass a fresh order, in compliance of provisions of Order 41 of the Code of Civil Procedure. Parties are directed to appear before the lower appellate Court on 22.12.2014. Records of the Courts below be returned immediately. 16. Assistance rendered by Mr. Sanjeev Kuthiala, Advocate, is highly appreciated. Appeal stands disposed of, so also the pending application(s), if any.