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2014 DIGILAW 1784 (ALL)

BEKARU v. MITHAI LAL

2014-05-30

ANIL KUMAR AGARWAL

body2014
JUDGMENT Hon’ble Anil Kumar Agarwal, J.—This is defendant-appellants’ appeal arising out of the judgment and order dated 16.12.2013 passed by the Additional District Judge, Court No. 8, Azamgarh, in Civil Appeal No. 125 of 2012, Mithai Lal v. Bekaru and another, allowing the appeal and remanded the case for deciding afresh by setting aside the judgment and decree dated 6.3.2012 passed by the Civil Judge (Junior Division), Azamgarh, dismissing the plaintiff-respondent’s Original Suit No. 844 of 2006, Mithai Lal v. Bekaru and others, for cancellation of sale-deed and for granting permanent injunction. 2. Brief facts giving rise to this appeal are that plaintiff-respondent Mithai Lal filed Original Suit No. 844 of 2006 in the Court of Civil Judge (Junior Division), Azamgarh, praying for a relief of cancellation of sale-deed dated 11.6.2002 and 28.3.2006 and also granting relief of permanent injunction restraining the defendants-appellants from interfering with plaintiff’s possession over the properties in dispute. 3. According to the plaint allegation the disputed properties described at the foot of the plaint belonged to one Hubraj, son of vijai, who died and left behind his widow Smt. Sonkali. It is further alleged that the Hubraj before his death had executed a Will in favour of the plaintiff Mithai Lal on 15.12.1970 relating to disputed properties described at foot of the plaint. After the death of Hubraj the plaintiff Mithai Lal became the owner and in the possession of that properties through will. The defendant No. 1 is a Doctor and the defendant No. 2 is a Compounder and both in collusion got sale-deeds dated 11.6.2002 and 28.3.2006 prepared in respect of the disputed property by showing execution by Smt. Sonkali, wife of Late Hubraj. The said sale-deeds are forged and fictitious one for the reason that Smt. Sonkali executed these sale-deeds under impression of getting widow pension papers and it was executed by some imposter other than Smt. Sonkali. No consideration had been passed in this respect and there is no reason before Sonkali to sell the said properties. In the month of June the plaintiff knew about the void sale-deed then he requested the defendants for getting the sale-deeds cancelled but they raised disputes with him, hence this suit. 4. Defendant-appellants contested the suit and filed their written statements. In the month of June the plaintiff knew about the void sale-deed then he requested the defendants for getting the sale-deeds cancelled but they raised disputes with him, hence this suit. 4. Defendant-appellants contested the suit and filed their written statements. They averred in the written statement that after the death of Hubraj his widow Smt. Sonkali became the owner of the disputed properties and she executed two sale-deeds in their favour to meet her need and after execution of both the sale-deeds they became owners of the properties in dispute and are in possession of the disputed properties. The sale-deeds were executed in their favour after obtaining the permission from the District Magistrate. Hubraj had never executed any will in favour of the plaintiff and the alleged will has been prepared and forged by the plaintiff Mithai Lal and the will had overwriting, which also indicate the will as forged one. With these allegations they prayed for dismissing the suit with cost. 5. The trial Court had framed seven issues and both the parties led oral as well as documentary evidence. Issue No. 1: Whether the sale-deeds dated 11.6.2006 and 28.3.2008 are liable to be cancelled on the grounds mentioned in the plaint, if so its effect. Issue No. 2: Whether the suit is barred by time? Issue No. 3 : Whether the suit is barred under Section 10 C.P.C.? Issue No. 4: Whether the suit is under valued and the Court fee paid is insufficient? Issue No. 5: Whether the suit is barred by rules of estoppel? Issue No. 6: Whether the suit is barred by provisions of Section 34 of Specific Relief Act? Issue No. 7: Other relief, if any. On Issue No. 1 the finding recorded by the Court below was that on appreciation of evidence led by both the parties it is established that the plaintiff has failed to prove its case on the basis of Will dated 15.12.1970 in respect of the disputed land and he is not entitled to get the sale-deeds dated 11.6.2002 and 28.3.2006 cancelled on the grounds mentioned in the plaint and the said issue was decided in negative. On issue No. 2 the trial Court recorded a finding that there is no evidence on record, which shows that the suit is barred by limitation. This issue was decided in negative and in favour of the plaintiff. On issue No. 2 the trial Court recorded a finding that there is no evidence on record, which shows that the suit is barred by limitation. This issue was decided in negative and in favour of the plaintiff. On issue No. 3 the trial Court recorded finding that the parties did not led any evidence on this issue, therefore, the suit is not barred under Section 10 C.P.C. And decided this issue in negative. On issue No. 4 the trial Court held that on 30.11.2008 this issue has already been decided and the decision will as it is. On issue No. 5 the trial Court held that there is no evidence available on record, which suggest that the suit is barred by principle of estopple, therefore, this issue was decided in negative. On issue No. 6 the trial Court held that no evidence was available on record to decide this issue, therefore, the suit is barred by the provisions of Specific Relief Act and decided this issue in negative. On issue No. 7 the Court below decided that after deciding the issue that the plaintiff is not entitled to get any relief, therefore, the suit is liable to be dismissed. With these findings the trial Court dismissed the suit of the plaintiff-respondent for cancellation of sale-deed and for issuing permanent injunction. 6. Feeling aggrieved from the judgement and decree the plaintiff-respondent Mithai Lal preferred Civil Appeal No. 125 of 2012 before the District Judge, Azamgarh, which was heard by the Additioanl District Judge, Court No. 8, Azamgarh. After hearing the counsel for both the parties the lower appellate Court observed that the trial Court gave a wrong finding on issue No. 3 to the effect that there is no evidence available on record for determination that the suit is barred by the provisions of Section 10 C.P.C., while on the record certified copy of suit No. 1011 of 1999, Sonkali v. Khelawan, pending in the Court of Civil Judge (Junior Division), Court No. 24, Azamgarh, was available. On this reason the appellate Court formed an opinion that the said matter be remanded back for deciding afresh. On this reason the appellate Court formed an opinion that the said matter be remanded back for deciding afresh. On this point the lower appellate Court on 16.12.2013 decided the appeal with this observation that the appeal is to be allowed and the order dated 6.3.2012 be set aside and remanded the matter to the trial Court for deciding the matter afresh in the light of the observations made in the appellate order. Feeling aggrieved from the order of the appellate Court dated 16.12.2013 the defendants-appellants have preferred this First Appeal From Order before this Court. 7. Heard Sri R.P. Yadav, learned counsel for appellant and Sri Hardeo Prajapati and Sri Neeraj Tripathi, learned counsel for respondent. Both the counsels were agreeing that the present appeal be finally disposed of at the admission stage. The counsel for appellant submitted that the decision of lower appellate Court for remanding the appeal matter to the trial Court for afresh decision is erroneous and unwarranted in law. The trial Court had decided the entire suit on merits after appreciating the evidence of both parties with all issues framed in the suit. In appeal the lower appellate Court only touched issue No. 3, which was framed relating to provisions of Section 10 C.P.C. and after setting aside the judgement of the trial Court, remanded the matter to decide afresh, which the lower appellate Court has itself power to correct the finding on issue No. 3. Therefore, it is neither justifiable nor beneficial for both the parties to remand the matter for afresh decision. 8. On the other hand learned counsel for respondent firstly tried to justify the order of remand but subsequently agreed to decide the aforesaid matter as well as the appeal be decided on merits by the lower appellate Court. On perusal of impugned order dated 16.12.2013 as well as the record, I find that the order of the lower appellate Court regarding remand of the suit to decide afresh on the basis of the findings given on issue No. 3 are not justifiable order. 9. Order 41 of the C.P.C. provides for appeal from original decrees. The Code empowers the appellate Court to pass an order of remand in three situations. 9. Order 41 of the C.P.C. provides for appeal from original decrees. The Code empowers the appellate Court to pass an order of remand in three situations. Provisions of Order 41 Rule 23 C.P.C. invocable by the appellate authority when the appeal has arisen from the decree passed on a preliminary point and the decree is reversed in appeal. The appellate Court may, if it thinks fit by order remand the case with direction that issue or issues shall be tried in the case so remanded and Order 41 Rule 23A is invoked 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 retrial is considered necessary. The appellate Court shall have the same power as it was under the Rule 23. While the power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted any question of fact essential to decide the matter finally. The appellate Court may direct the trial Court to take additional evidence on such issue. 10. In AIR 2002 SC 771 the Apex Court has held that it is only in exceptional circumstances the Court may exercise the power of remand under Rules 23 and 23A C.P.C. The power of remand under these rule ought not to be lightly exercised by the Appellate Court where the lower Court has disposed the suit on merit. The Appellate Court must dispose of the appeal on merit and it cannot avoid its duty. It is only in exceptional circumstances as where the judgement of the lower Court is wholly unintelligible then a remand can be made for a fresh trial. Where the trial Court after considering the evidence has come to a conclusion the appellate Court should not ordinarily remand the case. It should see first whether it can dispose the case itself under the provisions of Order 41 Rules 24 to 27 and only when it is found that it is not possible to do so then exercise the power of remand. It is not necessary in the interest of justice to remit the suit in every case. It should see first whether it can dispose the case itself under the provisions of Order 41 Rules 24 to 27 and only when it is found that it is not possible to do so then exercise the power of remand. It is not necessary in the interest of justice to remit the suit in every case. When the appellate Court is not agreeing with the findings of the trial Court on certain issue only two courses were open (I) to reverse the finding on said issue and (ii) to seek report from trial Court if evidence on such issue is deficient. Remand of cases to trial Court for fresh decision these issues is not proper. 11. In the present case the trial Court had decided the suit for cancellation of sale-deed and prohibitory injunction on merit after appreciation of evidence of both parties alongwith findings on all issues. In appeal the appellate Court touched only finding on issue No. 3, which relates to the provisions of Section 10 C.P.C. and observed that the trial Court had decided this issue with the finding that the parties had not led any evidence on this issue while documentary evidence were available on record, therefore, the finding on issue no,. 3 is not correct and remanded the entire matter for afresh decision. I think that the lower appellate Court itself has power to correct any finding on any issue when there is no need to take additional evidence on particular issue. Therefore, I do not think it proper to remand the entire case mere for correcting the finding on issue No. 3. Consequently, the appeal is allowed, the impugned order dated 16.12.2013 passed by the Additional District Judge, Court No. 8, Azamgarh, in Civil Appeal No. 125 of 2012, Mithai Lal v. Bekaru and another, remanding the matter for deciding afresh is set aside and the lower appellate Court is directed to decide the issues and the appeal on merit in accordance with law.