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2017 DIGILAW 2730 (ALL)

Jagdish Chandra Gupta v. Vimla Devi

2017-11-24

MAHENDRA DAYAL

body2017
JUDGMENT : 1. I have heard Shri Brijesh Kumar Saxena, learned counsel for the appellant and Shri Mayank Pandey, learned counsel for the respondents and perused the record. 2. The appellant has challenged the judgment and order dated 7.10.2009, passed by the Additional District Judge, Court No.10, Lucknow, in Regular Civil Appeal No. 38 of 2008, whereby the appeal was allowed and the matter was remitted back to the trial court with direction that an issue with regard to collusion between the parties be framed and another issue be framed as to whether the relief of permanent injunction can be granted to the plaintiffs and thereafter decide the suit afresh and if necessary fresh evidence be also taken. 3. The facts in brief are that the plaintiff/respondent no.1 filed a Suit No. 263 of 2005, against the appellant and respondents no. 2 and 3 for permanent injunction and a decree for declaration on the ground that she was the owner of house no. 149 /109 situated at Hari Nagar Dugawan, District Lucknow. It was also stated that she purchased the aforesaid house from the respondents no.2 and 3 through their attorney, namely, Om Prakash on 27.7.2003. The seller had assured the plaintiffs/respondent no.1 that the house was free from all the encumbrances. and the respondent no.2 was the owner on the basis of a Will dated 13.4.1992 executed by Smt. Laxmi Devi. The plaintiff-respondent no.1 on being satisfied, purchased the house. When the plaintiff/ respondent no.1 received notice of Execution Case No. 8 of 2003, she appeared and filed objections under Section 47 CPC which was rejected. She was therefore left with no other option, except to file a suit for declaration and permanent injunction. It was also pleaded by her in the suit that the appellant and the respondents no. 2 and 3 were in collusion. The respondents no.2 and 3 did not appear and the case proceeded ex-parte against the appellant. Defendant no.1 contested the suit and filed his written statement. It was stated by the defendant/appellant that the plaintiff/ respondent no.1 purchased the disputed house on 25.7.2003. It was also said that a suit against the respondent no.2 was filed for specific performance of contract, which was Regular Suit No. 24/2001. This suit was decided on 25.11.2002 against the respondent no.2. It was stated by the defendant/appellant that the plaintiff/ respondent no.1 purchased the disputed house on 25.7.2003. It was also said that a suit against the respondent no.2 was filed for specific performance of contract, which was Regular Suit No. 24/2001. This suit was decided on 25.11.2002 against the respondent no.2. Feeling aggrieved by the dismissal of the suit, he preferred Regular Civil Appeal No. 3/2003, which was also dismissed. The second appeal No. 242 of 2003 was filed which was also dismissed as not pressed. Thereafter the execution Case No. 8/2003 was filed in which the notice was issued to the respondent no.2. The respondent no.2 also moved an application before executing court for permission to execute the sale deed which was allowed but thereafter when the respondent no.2 reached at the disputed house, only then he came to know that the house has already been sold to plaintiff/respondent no.1. He then impleaded the plaintiff/respondent no.1 in the execution case and thereafter notice was issued to her. She also appeared before the execution case and filed her objection under Section 4 CPC but the same was rejected. Thereafter the suit for declaration and permanent in unction was filed by the plaintiff/respondent no.1. The declaration was sought to the effect that the agreement between the defendant No.1 and defendant no.2 of the original suit was not binding on the plaintiff/respondent no.1. The appellant in his written statement challenged the aforesaid relief and stated that such declaratory decree cannot be granted by the court. 4. The learned trial court framed 4 issues and after appreciation of evidence it was concluded that the plaintiff respondent no.1 was not the bonafide purchaser of the house in question. With this finding the suit was dismissed with cost. 5. The plaintiff/respondent no.1, being dissatisfied with the dismissal of the suit, filed Regular Civil Appeal No. 38/2008, in which the impugned judgment has been passed. The learned appellate court came to the conclusion that the suit filed by the plaintiff/respondent no.1 was dismissed, because she was not found to be a bona-fide purchaser. The learned trial court recorded the finding that the plaintiff/respondent no.1 was not the bona-fide purchaser, on the basis of the doctrine of lis pendens. 6. The learned appellate court came to the conclusion that the suit filed by the plaintiff/respondent no.1 was dismissed, because she was not found to be a bona-fide purchaser. The learned trial court recorded the finding that the plaintiff/respondent no.1 was not the bona-fide purchaser, on the basis of the doctrine of lis pendens. 6. It has been argued by the learned counsel for the appellant that the learned court below ignored the fact that the judgment and decree passed in earlier Suit No. 24 of 2001 and the decree passed in First Appeal No. 3 of 2003, attained finality after the dismissal of second appeal. The dismissal of Suit No. 24 of 2001 amounts to upholding the registered agreement for sale in respect of which execution case no. 8/2003 was pending. The learned appellate court also misinterpreted the provision of 52 of the Transfer of Property Act which pertains to doctrine of lis pendens. The learned appellate court also ignored the apparent fraudulent act committed by the respondents no.2 and 3 in executing a sale deed on 25.7.2003. in respect of the property in suit in favour of plaintiff/ respondent no.1 after the judgment and decree dated 19.5.2003, when the First Appeal filed by the respondent no.2 relating to the same property was dismissed by the appellate court confirming the judgment and decree passed in favour of the appellant for specific performance of contract. The learned first appellate court also made out a third case of collusion between the parties while there was absolutely no pleading of any of the parties that there was any collusion between the parties. It has also been argued on behalf of the appellant that the entire evidence was already on record and therefore the appellate court itself was competent to frame additional issue and record its finding on the basis of evidence. The principle of remand as contained in Order 41 Rule 23 and 23A CPC makes it clear that the appellate court may remand the case to the trial court only if it finds that the remand is necessary for the purpose of taking additional evidence in order to decide the controversy. If the material is available before the appellate court, it should itself decide the appeal one way or the other on the basis of material and remand in such cases is wholly unwarranted. 7. If the material is available before the appellate court, it should itself decide the appeal one way or the other on the basis of material and remand in such cases is wholly unwarranted. 7. In a case reported in AIR 2002 Supreme Court page 161 P. Proshottam Reddy Vs. Pratap Steels Ltd, the Hon'ble Supreme Court has examined the scope of Rules 23 and 23-A of Order 41 CPC. The Hon'ble Supreme Court has held that before the Amendment of 1976, the courts in appropriate cases could exercise its inherent jurisdiction to order a remand if such a remand was considered necessary. In the cases where the additional evidence is required to be taken, 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 was inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree, if the trial court disposed of the case otherwise than on a preliminary point, and 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 CPC. After the amendment, all the cases of remand are covered in 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, it is well settled that inherent powers can be availed only in absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand. An appellate court should not pass an order of remand when the case is not covered either by Rule 23 or Rule 23-A of Order41 CPC. 8. In the present case the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording finding on all the issues. The appellate court in its judgment has recorded finding on all the issues and then directed the trial court to frame two additional issues and further directing the trial court to decide the same after permitting the parties to give additional evidence. The suit was decided by recording finding on all the issues. The appellate court in its judgment has recorded finding on all the issues and then directed the trial court to frame two additional issues and further directing the trial court to decide the same after permitting the parties to give additional evidence. It is not a case where retrial is necessary, thus neither the Rule 23 nor 23-A of Order 41 applies. 9. Now considering the facts of the present case and the requirement of Order 41 Rule 23 and 23A when the order of remand impugned in this First Appeal is examined, it is found that since the retrial was not necessary, the appellate court ought to have decided the appeal on the basis of evidence on record. The learned appellate court instead of determining the real controversy involved in the appeal, carved out a third case of collusion between the parties and remanded the matter. No such finding was necessary in order to decide the appeal on merit. 10. In view of the above, I find that the judgment and order passed by the court below is erroneous and is liable to be set aside. 11. In the result the First Appeal From Order is allowed and the impugned judgment dated 7.10.2009 passed by the Additional District Judge Court No.10, Lucknow in Regular Civil Appeal No. 38 of 2008 is set aside. It is directed that the appellate court shall restore the appeal to its original number and decide the same on merit in accordance with law on the basis of evidence on record. The parties are directed to appear before the concerned appellate court along with certified copy of this judgment on 18th December, 2017. The appellate court is further directed to decide the appeal as expeditiously as possible preferably within a period of three months from the date of receiving of a certified copy of this order.