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2016 DIGILAW 5 (ORI)

Dwija Dalpati v. Kalakanhu Patel

2016-01-05

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This matter arises out of an order passed by the lower Appellate Court in rejecting an application under Order 41 Rule 25 of C.P.C. at the instance of the plaintiffs. 2. The undisputed facts remain that the plaintiff filed the suit bearing T.S. No.68 of 1986 claiming the following relief (a) declaration of the possessory title of the plaintiff over the suit lands (b) Confirmation of plaintiff’s possession over the suit lands; (c) Costs of the suit and (c) Any other relief which the court will deem fit and proper. The suit was disposed of finally on contest and during pendency of the first appeal, the plaintiff moved an application for amendment of the plaint. Though the amendment application was allowed, the same remained unchallenged as on date. In the meantime, consequent upon allowing the amendment, an additional issue was also framed relating to claim of adverse possession by the plaintiff. Framing of additional issue also remained unchallenged till date. It is at this stage, the plaintiff filed an application under Order 41 Rule 25 of C.P.C. praying therein the lower Appellate Court for remanding the matter to the trial court for recording its evidence on the additional issue framed by the lower Appellate Court and sending the evidence back to the lower appellate Court for its consideration in the disposal of the appeal. This application was objected by the opposite parties on the premises that in view of the plaint averments in the original plaint and the averments in the written statement as well as the evidence so recorded by the trial court, there is sufficient material available on record to decide the additional issue by the lower Appellate Court and therefore, there is no necessity of remanding the matter to the trial Court for recording further evidence on the additional issue. 3. Considering the rival contentions of the parties, the lower appellate Court by the impugned order rejected the application at the instance of the plaintiff and directed for decision in the appeal on the available evidence. 4. 3. Considering the rival contentions of the parties, the lower appellate Court by the impugned order rejected the application at the instance of the plaintiff and directed for decision in the appeal on the available evidence. 4. By filing the writ petition the plaintiff assailed the impugned order on the premises that in view of allowing the amendment, further in view of framing of the additional evidence and further in view of the mandatory provisions as contained in Order 41 Rule 25 of C.P.C., the lower Appellate Court ought to have remitted the matter to the trial Court for recording evidence on the additional issue and the evidence so recorded could have been placed before the lower appellate Court for final adjudication of the appeal. 5. Learned counsel for the petitioner further contended that since the opposite parties would have got an opportunity of cross examination there was no otherwise prejudice caused to the opposite parties in the event, the matter would have been remitted back to the trial Court for recording of evidence on the additional issue. 6. Further relying on a decision of the Hon’ble Apex Court in a case in between Smt. Bachahan Devi and another –Versus-Nagar Nigam, Gorakhpur and Another as reported in 2008(I) CLR (SC) 439 particularly referring to the observations of the Hon’ble Apex Court in paragraph No.11 contended that the provision contained in Order 41 Rule 25 is mandatory and thus claimed that the impugned order not only suffers on account of the statutory provision contained in Order 41 Rule 25 of C.P.C. but also suffers on account of law in view of the settled decision by the Hon’ble Apex Court cited supra. 7. It is in these premises, learned counsel for the petitioner prays for interference of this Court in the impugned order and thereby directing the lower appellate Court for remanding the matter to the trial Court for recording evidence on the additional issue and sending the evidence so recorded back to the lower Appellate Court for its consideration in the final hearing of the appeal. 8. 8. Learned counsel for the opposite party in opposition referring to the paragraph No. 16(A) of the amended plaint contended that in view of the pleading already contained in the original plaint, there was no occasion for any further evidence and the pleading on adverse possession has already been substantially represented by the plaintiff not only in his pleadings but also in the evidence laid on his behalf. Further referring to the evidence recorded by the trial Court Mr.Nanda also submitted that in view of the details of evidence already recorded, the additional issue, can very well be adjudicated upon basing on the materials available on record. 9. Learned counsel for the opposite party in order to substantiate his stand referred to a catena of decisions as reported in AIR 1965 Orissa 108, 1998(II) OLR 598, 1998(II) OLR 653, 2005 (II) OLR 690 . In referring to these decision, learned counsel for the opposite parties contended that in view of the settled position through above catena of decisions as well as the submission of the defendants, the trial court did no wrong in rejecting the application. Relying on the provisions under Order 41 Rule 24 of C.P.C. as well as Order 41 Rule 25 of C.P.C. thus contended that there is no scope for interfering in the impugned order. 10. By way of amendment of the plaint the plaintiff has brought the following amendment : “16(A). The plaintiff has since acquired his preseriptiy title over the schedule lands by adverse possession for his long, continuous, hostile and uninterrupted possession.” 11. Looking to the aforesaid amendment, it clearly appears that the plaintiff for the first time advanced a plea of adverse possession for his long, continuous, hostile and uninterrupted possession. Amendment to the above effect has been allowed and which order has not been challenged also. From the pleadings of the parties, it also appears that consequent upon such amendment, the trial court has also framed an additional issue concerning the claim of plaintiff on adverse possession, which additional issue has also not been challenged by the defendants so far. Now coming to the application under Order 41 Rule 25 of C.P.C. at the instance of the plaintiff, the provision under Order 41 Rule 25 of C.P.C. reads as follows: “25. Now coming to the application under Order 41 Rule 25 of C.P.C. at the instance of the plaintiff, the provision under Order 41 Rule 25 of C.P.C. reads as follows: “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from – Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with the findings thereon and the reasons therefore [within such time as may be fixed by the Appellate Court or extended by it from time to time.] 12. Looking to the provisions contained therein, it appears that the provision has four parts (1) The Appellate Court may if necessary (2) Frame issues (3) Referring the same for trial to the Court from whose decree the appeal is preferred and (4) In such case shall direct such Court to take the additional evidence require. Reading of the provision quoted hereinabove, it further discloses that in the event the Appellate Court frames issue referring the same for trial to the Court from whose decree, the appeal is preferred and in such event shall direct such Court to take additional evidence required. 13. It is in this context, it is also here necessary to refer the provision under Order 41 Rule 24 of C.P.C., which is quoted as hereinbelow. “24. Where evidence on record sufficient, Appellate Court may determine case finally – Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may after, resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” 14. Reading of the provision referred to hereinabove, makes it clear that in the event, the evidence so recorded is sufficient to enable Appellate Court to pronounce the judgment, the Appellate Court may after rescheduling the issues finally determine the suit. 15. It is in this contingency, it is now to be seen as to whether the trial court has considered the application under Order 41 Rule 25 of C.P.C. looking to the contingency provided under Order 41 Rule 24 as well as the Order 41 Rule 25 of C.P.C.? There is no doubt that for the first time the plaintiff in the 1st appellate stage only brought the pleadings as well as claim on the basis of adverse possession. Thus, it is clearly appearing that there was no scope for the plaintiff to advance evidence to substantiate that his possession was long, continuous, hostile and uninterrupted at the earlier stage. Reading of the evidence copy of which was produced by Sri Nanda, learned counsel also did not disclose any such evidence. From reading of the entire order, this Court nowhere finds the lower appellate Court making any endeavour to at least find as to whether there is any evidence on the above aspect in the disposal of the suit? In the event, there is no evidence on the above aspect then looking to the mandatory provisions contained in Order 41 Rule 25 of C.P.C., the matter ought to be remitted to the trial Court for recording further evidence and sending the evidence so recorded back to the lower appellate court for taking final decision in the matter. In view of the details hereinabove, this Court does not find the citation shown by the opposite parties has any relevancy at this stage. However, the decisions vide 2008 (I) CLR (SC) 439 supports the case of the petitioner. 15. Under the circumstances, this Court feels it appropriate to interfere in the impugned order and while interfering in the impugned order, this Court sets aside the same and remits the matter back to the trial court to reconsider the application under Order 41 Rule 25 of C.P.C. giving opportunity of hearing to the respective parties and take a decision in the matter afresh. Since the matter is decided in presence of both the parties, both the parties are directed to appear before the court below on 18th January, 2016 along with certified copy of this order. Lower court is also directed to take a decision in the matter within a period of one month thereafter.