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2015 DIGILAW 2044 (RAJ)

Kusum Lata v. Ram Lal

2015-12-08

BELA M.TRIVEDI

body2015
JUDGMENT : Bela M. Trivedi, J. With the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. 2. The present appeal arises out of the order dated 17/8/2012 passed by the Additional Sessions Judge, Malpura, District Tonk (hereinafter referred to as 'the Appellate Court') in Regular Appeal No.13 of 2006, whereby the Appellate Court while allowing the application filed by the respondents-defendants under Order 6, Rule 17 of CPC, seeking amendment in the written statement, has set aside the judgment and decree dated 10/7/2006 passed by the Civil Judge (Junior Division), Todaraisingh (hereinafter referred to as 'the Trial Court') in Civil Suit No.376 of 1996, and remanded the case to the Trial Court for deciding the suit afresh. 3. The short facts, giving rise to the present appeal, are that the appellants-plaintiffs had filed the suit, seeking eviction of the respondents-defendants from the suit premises and seeking mandatory injunction directing the defendants to remove the construction made on the suit land. It was alleged interalia by the appellants-plaintiffs that the husband of the plaintiff No.1-Trilok Chand had purchased the land in question from Gram Panchayat, in an open auction held on 24/12/1983, and the Gram Panchayat had issued the patta in favour of him and handed over the possession. However, the respondents-defendants had made encroachment upon the said land, and therefore the suit was filed. The said suit was resisted by the respondents-defendants by filing the written statement, denying the allegations and contending interalia that the defendants were using the said land and the house constructed thereon since last more than 30 years and that the suit was liable to be dismissed. 4. The Trial Court, after appreciating the evidence on record, had decreed the suit, directing the respondents-defendants to remove the alleged construction made by them on the suit land and to hand over the possession of the suit land to the appellants-plaintiffs, and also to pay the mesne profits as directed in the said decree. 5. Being aggrieved by the said judgment and decree, the respondents-defendants had preferred the appeal being No.13 of 2006 before the Appellate Court. 5. Being aggrieved by the said judgment and decree, the respondents-defendants had preferred the appeal being No.13 of 2006 before the Appellate Court. During the pendency of the said appeal, the respondents-defendants had filed an application under Order 6, Rule 17 , seeking amendment in the written statement filed by them in the suit, contending interalia that the land in question being Gochar land, the Gram Panchayat had no right to sell the same to the appellants-plaintiffs. The Appellate Court, while allowing the said application, allowed the appeal of the respondents-defendants and set aside the judgment and decree dated 10/7/2006 passed by the Trial Court, further directing the Trial Court to pass the decree afresh, after taking on record the amended written statement of the respondents-defendants. Being aggrieved by the said order, the present appeal has been filed. 6. It is vehemently submitted by the learned counsel Mr. Sandeep Jain for the appellants that the Appellate Court had committed gross error in allowing the appeal, and setting aside the decree passed by the Trial Court, while allowing the application of the respondents-defendants under Order 6, Rule 17 . According to him, apart from the fact that the amendment could not have been granted in view of proviso to Rule 17 Order 6, the Appellate Court could not have remanded the case to the Trial Court for deciding the suit afresh, without giving any findings in the Appeal. Relying upon various decisions of the Supreme Court, Mr. Jain submitted that the Appellate Court should not have remanded the case to the Trial Court, without reversing the decree passed by the Trial Court as contemplated under Order 41, Rule 23A of CPC, and if the Appellate Court was of the opinion that additional evidence was required to be recorded in view of the amendment sought in the written statement, the Appellate Court could have recorded the evidence itself or directed the Trial Court to record the evidence on the particular issue, however in no case, the Appellate Court could have set aside the decree without deciding the appeal on merits. However, the learned counsel Mr. However, the learned counsel Mr. Pradeep Mathur for the respondents-defendants submitted that the Appellate Court was empowered to remand the case in view of Order 41, Rule 23A , as after the amendment in the written statement was allowed by the said Court, the additional evidence was required to be led in the suit. In this regard, Mr. Mathur has relied upon the decision of Supreme Court in case of Jegannathan v. Raju Sigamani & Anr, (2012) 5 SCC 540 , in case of Balai Chandra Hazra v. Shewdhari Jadav, AIR 1978 Supreme Court 1062 & in case of H.P. Vedavyasachar v. Shivashankara & Anr, (2009) 8 SCC 31 . He also relied upon the decision in case of Mount Mary Enterprises v. M/s. Jivratna Medi Treat Pvt. Ltd, 2015 (5) AD (S.C.) 281 to submit that the pleadings could be amended at any stage of proceedings. 7. Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, more particularly the impugned order passed by the Appellate Court, it transpires that the Appellate Court allowed the appeal, while allowing the application of the respondents-defendants (appellants before the Appellate Court) under Order 6, Rule 17 for seeking amendment in the written statement, and has set aside the judgment and decree dated 10/7/2006 passed by the Trial Court, without deciding the appeal on merits. Apart from the fact that the Appellate Court should have recorded the findings and reversed the decree for remanding the case to the Trial Court under Rule 23A Order 41, the Appellate Court could not have allowed the application under Order 6, Rule 17 in view of the proviso thereof. It is needless to say that the Appellate Court could exercise the powers of remand, either under Rule 23 or Rule 23A Order 41 of CPC. The powers of remand under Rule 23 could be exercised when the Trial Court has disposed of the suit on preliminary point, and the powers under Rule 23A could be exercised when the case is disposed of otherwise then on preliminary point by the Trial Court. The powers of remand under Rule 23 could be exercised when the Trial Court has disposed of the suit on preliminary point, and the powers under Rule 23A could be exercised when the case is disposed of otherwise then on preliminary point by the Trial Court. Further while exercising the powers under Rule 23A, the Appellate Court has not only to reverse the decree of the Trial Court, by deciding the appeal on merits and recording the findings on the issues involved, but also has come to the conclusion that a retrial is considered necessary. A beneficial reference of the decision of Supreme Court in case of Municipal Corporation, Hyderabad v. Sundar Singh, 2008 DNJ (SC) 525 in this regard be made. 8. It is also pertinent to note that so far as the powers of Appellate Court to refer a particular issue to the Trial Court for recording the additional evidence is concerned, the same is contemplated in Rule 25 Order 41. However, in such case also, the Appellate Court has to frame the issue for referring the same to the Trial Court from whose decree the appeal is preferred, and direct the Trial Court to take the additional evidence as required. In such case, the Trial Court has to try the said issue or issues referred by the Appellate court, and return the evidence to the Appellate Court together with its findings thereon and the reasons thereon. The Appellate Court thereafter has to decide the appeal on the additional evidence and additional findings recorded by the Trial Court. Under no circumstances, the Appellate Court could have remanded the case to the Trial Court without following the procedure either under Rule 23 or 23A or 25 of Order 41. At this juncture, beneficial reference of the decision of Supreme Court in case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 Supreme Court Cases 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. 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. 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 v. Sushila Mahendra Nanavati ( AIR 1965 SC 364 ), 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. 9. Since the Appellate Court has failed to comply with the said provisions contained in Order 41 and has also ignored the proviso to Rule 17 Order 6, the impugned order passed by the Appellate Court is set aside. The Appellate Court is directed to decide the appeal as well as the application under Order 6, Rule 17 of the respondents afresh and in accordance with law. The appeal is allowed accordingly. The Appellate Court is directed to decide the appeal as expeditiously as possible. By this order, the stay application and other pending application, if any also stand disposed of. Appeal allowed.