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Uttarakhand High Court · body

2017 DIGILAW 399 (UTT)

PARVESH CHAND BAGGA v. NAND LAL BAGGA

2017-07-21

LOK PAL SINGH

body2017
JUDGMENT Hon’ble Lok Pal Singh, J. Present appeal has been preferred by the appellant against the judgment and order dated 09.02.2009 passed by District Judge, Almora in Civil Appeal no.23 of 2007, whereby the first appellate court allowed the appeal filed by the plaintiff/respondent and remanded the matter to the trial court for a fresh decision. 2. Brief facts of the case are that plaintiff/respondent filed a suit being Civil Suit No.17 of 2005 in the Court of Civil Judge, Senior Division, Almora against the appellant/defendant for recovery of a sum of Rs. 3,25,000/-, stating therein that the plaintiff and defendant are real brothers. There is a joint house of the plaintiff and defendant which was purchased by their father Late Gopal Singh Bagga. On 20.01.2002, a family partition took place between the parties with mutual consent in which shops came into the share of the plaintiff, and it was decided that in lieu thereof, the plaintiff will pay a sum of Rs. 4,00,000/- to the defendant. The plaintiff also agreed for the same and accordingly paid Rs. 3,00,000/- cash on 23.05.2002. On 10.08.2001, Rs. 25,000/- had already been paid by him by way of cheque. But, thereafter the defendant turned dishonest and during mutation proceedings before the Municipal Board, filed an objection. Therefore, the suit for recovery of advance money was filed. The defendant contested the suit and filed written statement. In the written statement, the defendant denied the plaint averments and stated that the amount claimed by the plaintiff has been returned to him. On the pleading of parties, the learned trial court formulated the following issues: i) Whether the plaintiff has given Rs. 3,25,000/- to the defendant in lieu of leaving his share as per family partition? ii) Whether the defendant has returned Rs.3,00,000/- to the plaintiff? iii) Whether the plaintiff is entitled for relief sought? 3. Both the parties led oral as well as documentary evidence. After recording the evidence and hearing both the parties, the trial court, vide judgment and decree dated 14.08.2007, dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff preferred an appeal before District Judge, Almora, which was registered as Civil Appeal No.23 of 2007. Learned District Judge, vide judgment and order dated 09.02.2009, allowed the appeal and remanded the matter to the trial court for fresh decision in the light of observations made in the judgment. 4. Feeling aggrieved, the plaintiff preferred an appeal before District Judge, Almora, which was registered as Civil Appeal No.23 of 2007. Learned District Judge, vide judgment and order dated 09.02.2009, allowed the appeal and remanded the matter to the trial court for fresh decision in the light of observations made in the judgment. 4. Learned counsel for the appellant/defendant submits that the impugned judgment and order passed by the appellate court is not legally sustainable in view of Order XLI Rule 23 of C.P.C. 5. Per contra, learned counsel for the respondent/plaintiff supports the appellate court’s judgment and order. 6. I have heard learned counsel for the parties and have gone through the entire record. 7. The Court finds that the first appellate court, without going into the merits of the case and withoutrecording any independent finding on the issues orwithout reversing the findings of the trial court, simply chose a shortcut to remand the matter to the trial court. 8. Remand of case has been provided under Order XLI Rule 23 of The Code of Civil Procedure, 1908, which is reproduced hereunder: “3. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a cop of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.” 9. An order of remand can be passed when the first appellate court arrives to the conclusion that the findings recorded by the trial court is not proper and the case requires further evidence and the first appellate court is not empowered to take the additional evidence and, not otherwise. 10. An order of remand can be passed when the first appellate court arrives to the conclusion that the findings recorded by the trial court is not proper and the case requires further evidence and the first appellate court is not empowered to take the additional evidence and, not otherwise. 10. The Hon’ble Apex Court in the case of Ashwinkumar K. Patel vs. Upendra J. Patel and others, (1999) 3 Supreme Court Cases 161 has held that the appellate court should not ordinarily remand a case under Order 41 Rule 23 merely because it considers the reasoning of the lower court to be wrong. Para 8 of the judgment is relevant, which is reproduced hereunder; “8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” 11. The first appellate court, without assigning any reason while arriving to the conclusion in remanding the matter, in a very cryptic manner has passed the order of remand. Clear reasoning and analysis are basic requirements in a judicial determination. Proper reasoning is an imperative necessity which should not be sacrificed for expediency, as has been held by the Hon’ble Apex Court in the case of State of Uttaranchal vs. Sunil Kumar Vaish & Ors., (2011) 8 SCC 670 . Para-13, 14, 15 and 16 of the judgment are relevant, which are reproduced hereunder: “13. Proper reasoning is an imperative necessity which should not be sacrificed for expediency, as has been held by the Hon’ble Apex Court in the case of State of Uttaranchal vs. Sunil Kumar Vaish & Ors., (2011) 8 SCC 670 . Para-13, 14, 15 and 16 of the judgment are relevant, which are reproduced hereunder: “13. We are surprised to note that the Division Bench of the High Court had overlooked the above mentioned vital facts while deciding the lis between the parties.Non-application of mind is writ large in the order of the High Court, not even an attempt or effort has been made to refer to the pleadings of parties or examine the documents produced, in spite of the fact that those materials were on record. 14. Of late, we have come across several orders which would indicate that some of the judges are averse to decide the disputes when they are complex or complicated, and would find out ways and means to pass on the burden to their brethren or remand the matters to the lower courts not for good reasons. Few judges, for quick disposal, and for statistical purposes, get rid of the cases, driving the parties to move representations before some authority with a direction to that authority to decide the dispute, which the judges should have done. Often, causes of action, which otherwise had attained finality, resurrect, giving a fresh causes of action. Duty is cast on the judges to give finality to the litigation so that the parties would know where they stand. 15. Judicial determination has to be seen as an outcome of a reasoned process ofadjudication initiated and documented by aparty based, on mainly events which happened in the past. Courts’ clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. The parties should be convinced that their case has been properly considered and decided. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system. 16. We are sorry to say that the judgment in question does not satisfy the above standards set for proper determination ofdisputes. Needless to say these types of orders weaken our judicial system. Serious attention is called for to enhance the quality of adjudication of our courts. Public trust and confidence in courts stem, quite often, from the direct experience of citizens from the judicial adjudication of their disputes.” 12. In view of the well settled proposition of law, impugned judgment and order passed by the first appellate court is not sustainable and is liable to be set aside. 13. Consequently, the appeal is allowed. Impugned judgment and order dated 09.02.2009passed by District Judge, Almora in Civil Appeal no.23 of 2007, is set aside and the matter is remanded to the first appellate court for its fresh disposal in accordance with law. Since the lis is pending between the parties from a very long time, the first appellate court shall make endeavor to decide the appeal, expeditiously. 14. Let the lower court record be sent back.