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2017 DIGILAW 325 (ALL)

MATHURA PRASAD v. MOOL CHANDRA

2017-01-24

K.J.THAKER

body2017
JUDGMENT Hon’ble Dr. Kaushal Jayendra Thaker, J.—This appeal has been preferred by the appellants being aggrieved by the order passed by the first appellate Court directing the suit to be retried. During the pendency of this appeal, respondent No. 1 and 2 have passed away and therefore the heirs have been taken on record. As far as respondent Nos. 3 and 4 are concerned, they remained undefended and none appeared for them even when the matter is called out for argument. 2. The main submission of learned counsel for appellant is that the first appellate Court could not have remanded the matter without giving any findings as to what were the reasons for remand and just because some witnesses were not examined would not be the basis for remanding the matter afresh. 3. It is submitted that the evidence was led by both the parties which was considered and recording of evidence was over and the suit being decreed in favour of the present appellant. It was a finding of fact that a sale-deed dated 3.11.1983 which was executed by Smt. Jwala Devi was fictitious and therefore the appellate Court could not have remanded the matter only on the ground that some persons were not examined by defendants or there was a necessity of further evidence. It is further submitted that the first appellate Court should have decided the appeal on merits without remanding the case under Order XLI Rule 23 of the Code of Civil Procedure, 1908. 4. Per contra, learned counsel appearing for the heirs of respondent Nos. 1 and 2 has submitted that the learned Trial Judge had committed illegality and decree was based on insufficient evidence and therefore, the learned appellate judge was right in directing the the Trial Court to decide the matter afresh as he has the power under Order XLI Rule 23 read with Rule 23A and there was no necessity for this Court to interfere as this appeal was technically not maintainable. However, on seeing the provision of Order XLI Rule 23 he does not carry out further this submission fleeing lacunae of this appeal. This stakes this Court a grave question whether the order impugned could have been passed or the first appellate Court was suppose to decide the appeal on its own merit. 5. However, on seeing the provision of Order XLI Rule 23 he does not carry out further this submission fleeing lacunae of this appeal. This stakes this Court a grave question whether the order impugned could have been passed or the first appellate Court was suppose to decide the appeal on its own merit. 5. This Court has perused the judgment of the first appellate Court in Civil Appeal No. 69 of 1987. The finding of fact by the First Appellate Court itself appear to be such which require this Court to interfere. The Apex Court has time and again deprecated practice of remand on flimsy grounds. 6. It is an admitted position of fact that while deciding the suit Smt. Jwala never came before the Court and therefore to hold that it was necessary for examining Smt. Jwala was supposed to be examined. Find that Smt. Jwala was not called as Chameli Devi and, in that view, a complaint before CJM is also filed. All these are such which were not suppose to be permitted before the first time before the appellate Court the appellate Court therefore could not have remanded the matter and decide the appeal itself as per the provision of Order XLI Rule 24 which reads as follows: “Order XLI Rule 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 resetting 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.” 7. Who should be examined cannot be decided by the Court it is for the parties to decide on their own. Therefore, having got the family extract of the documents the first Appellate Court could have decided the appeal itself without remanding the matter the record was very much before him. The first appellate Court in its reasoning which are based on surmised conjectures and for providing a fresh opportunity to a party who was never before the Trial Court, therefore, this remand cannot stand scrutiny of this Court and I cannot concur with the said reasoning given by the First Appellate Court. 8. The first appellate Court in its reasoning which are based on surmised conjectures and for providing a fresh opportunity to a party who was never before the Trial Court, therefore, this remand cannot stand scrutiny of this Court and I cannot concur with the said reasoning given by the First Appellate Court. 8. This appeal succeeds, the judgment of the first Appellate Court is set aside. I have given my findings that the appeal was to be decided on its merit without being remanded to the Trial Court and that exercise was absolutely not germane as the first Appellate Court could not have been remanded the suit under Order XLI Rule 23. I am not going on the technicality whether it should have been Order XLI Rule 23 of C.P.C. or Order XLI Rule 25 of C.P.C. May that as it may be, only with a view to give further opportunity to the appellants herein who miserably failed to prove their case before the Trial Court, the appeal shall be re-heard on all the documents and the record which was available in the Trial Court the defence could not have been permitted to fill the lacunae which is very apparent from the order of the first appellate Court. 9. The appeal be decided after calling record from the Trial Court and hearing parties at length. I do not think that the first appellate Court was right in remanding the matter in such a light-hearted manner only on the ground that one of the defendant was not examined or cross-examined by the present appellant. Here, I am fortified by latest judgement of the Apex Court in Zarif Ahmad (Dead) Through L.Rs. and another v. Mohd. Farooq, 2015 (2) AWC 2052 (SC). 10. It goes without saying that observations made herein will not bind first Appellate Court but of course, if the first Appellate Court again thinks of remanding the case it should look into the findings of this Court and this first appeal from order. 11. Thus, the appeal succeeds with costs. I have neither discussed the facts nor the merits save as itself proprietary of remand is looked into.