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2019 DIGILAW 2695 (ALL)

Awdhesh Kumar v. Rajendra Kumar

2019-12-04

VED PRAKASH VAISH

body2019
JUDGMENT : 1. Heard Sri Adnan Ahmad, learned counsel for the appellant and Sri Alok Srivastava, learned counsel for the respondent. 2. This is an appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") against the judgment and order dated 05th October, 2018 passed by learned Sixth Additional District Judge, Unnao, in Civil Appeal No.02 of 2016, whereby the appeal filed by the respondent was allowed. 3. Succinctly stating the facts of the present case as borne out from the record are that the respondent herein (plaintiff) filed a suit for cancellation of sale deed, which was registered on 22nd November, 2007, in respect of plot No.210, ad-measuring one bigha six biswa situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao bearing Civil Case R.S. No.76 of 2008. In the plaint, it was stated by plaintiff that he was owner of the half portion of plot No.208, ad-measuring 0.658 hec. situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao and the other half portion of the said plot was owned by his mother, namely, Smt. Somwati; the plaintiff sold the half portion of said plot No.208 to the defendant and executed a registered sale deed on 05.03.2004 for a consideration of Rs.80,000/-(rupees eighty thousand only), which was duly registered in the office of Sub-Registrar, Safipur, District Unnao; after execution of the said sale deed, in the month of July, 2007, the defendant stated that in the sale deed 05.03.2004, the boundaries of plot No.208 have been wrongly recorded and it needs to be corrected; the plaintiff agreed to the same, the defendant prepared a document to get the boundaries corrected and after one month, the defendant (appellant) told to the plaintiff that he should return the consideration amount of Rs.80,000/- and he is unwilling to buy the said plot No.208; the plaintiff was ready to return the consideration amount and proposed to the defendant that he would have to execute back the sale deed which he had executed in favour of the defendant; the defendant refused to bear the expenses of the stamp duty and registration fee; later on, when some people intervened, it was agreed that the defendant would execute a sale deed and the plaintiff would return the consideration amount of Rs.80,000/- and bear all other expenses of stamp duty and registration fee. Both the parties went to the office of Sub-Registrar, Safipur, District Unnao on 22.11.2007, since everything was decided and the sale deed was to be executed, the plaintiff returned the consideration amount of Rs.80,000/- to the defendant, in the presence of the witnesses, for the said half portion of plot No.208 ad-measuring 0.658 hec.; the plaintiff signed the document and put his thumb impression. It was alleged that the plaintiff put the thumb impression and signatures under the impression that the sale deed was being executed as per settlement; for execution of sale deed both the parties went to the office of Sub-Registrar, thumb impression of the plaintiff was taken and registration fee was paid by the plaintiff, the defendant went away from the office of Sub-Registrar on the excuse that he was going to toilet, the plaintiff waited for the defendant but the defendant did not turn up, the plaintiff got the information at the end of day that defendant got executed a sale deed fraudulently. It was also alleged that the defendant succeeded in getting the sale deed in respect of plot No.210 ad-measuring two bigha four biswa out of total area of 2.056 hec. situated at Village Newlapur, Pargana Bangarmau, Tehsil Safipur, District Unnao instead of executing back the sale deed in respect of plot No.208. It was also alleged that the plaintiff did not receive the consideration in respect of plot No.210; plot No.210 was a valuable piece of land situated at Lucknow Bangurmau Road and value of the plot No.210 is approximately Rs.4,00,000/-(rupees four lacs) per bigha; the sale deed was got executed in respect of plot No.210 without payment of consideration and by playing fraud on the plaintiff. Hence, the respondent/plaintiff filed a suit for cancellation of sale deed in respect of plot No.210 ad-measuring as one bigha six biswa registered on 22.11.2007 with the office of Sub-Registrar, Safipur, District-Unnao. 4. The suit was contested by the appellant/respondent by filing written statement; it was stated that the plaintiff is owner of both the plots No.209 and 210 and the plaintiff agreed to sell half portion of plot No.209 for a consideration of Rs.80,000/-. 4. The suit was contested by the appellant/respondent by filing written statement; it was stated that the plaintiff is owner of both the plots No.209 and 210 and the plaintiff agreed to sell half portion of plot No.209 for a consideration of Rs.80,000/-. It was further stated that the sale deed was executed on 05.03.2004, when the defendants started raising boundaries on the spot, the plaintiff objected to the same and at that time the defendant came to know that the land which was purchased by him was plot No.210 which was shown as plot No.209 in the sale deed and he was cheated by the plaintiff. Thus, it is stated by the appellant in the written statement that the plaintiff concealed the said fact with an ill motive to defraud him. 5. On the pleadings of parties, following issues were framed on 11.11.2019:- "1. Whether the plaintiff is entitled to get the sale deed dated 22.11.2007 canceled on the basis of his pleadings mentioned in the plaint? 2. Whether the suit is undervalued for the purpose of court fees and jurisdiction? 3. Is the suit barred by the provisions of Sec.331 of the ULZALR Act? 4. Which relief is the plaintiff entitled to obtain?" 6. In support of his case, the respondent/plaintiff filed some documents. After considering the pleadings and material on record, the suit of the plaintiff was dismissed by learned Additional Civil Judge (J.D.), Unnao vide judgment and decree dated 28th January, 2016. 7. Against the said judgment and decree, the respondent filed Civil Appeal No.02 of 2016. Vide impugned judgment and decree dated 05th October, 2018, learned Additional District Judge, Unnao allowed the appeal, set aside the judgment and decree dated 28th January, 2016 passed by learned Additional Civil Judge (J.D.), Unnao and the matter was remanded back for passing a fresh order after considering the pleas of the parties. 8. Being aggrieved by the said judgment and decree dated 05th October, 2018, the appellant has filed the present appeal. 9. Learned counsel for the appellant submitted that after order of remand neither fresh evidence is to be recorded nor fresh issues are to be framed. The first appellate court could have decided the matter after considering the pleadings of the parties, documents on record and evidence adduced by the parties and there was no occasion for remanding the matter without giving any findings on merits. The first appellate court could have decided the matter after considering the pleadings of the parties, documents on record and evidence adduced by the parties and there was no occasion for remanding the matter without giving any findings on merits. 10. Learned counsel for the appellant further submitted that the respondent/plaintiff has filed a Civil Suit No.116 of 2008 wherein it was stated that the boundaries have not been correctly mentioned in the sale deed dated 05.03.2004. 11. Per contra, learned counsel for the respondent urged that the plaintiff has not played any fraud and the sale deed was executed after payment of consideration. According to learned counsel for the respondent, the first appellate court has committed no illegality while remanding the matter for passing a fresh order on the basis of material on record. 12. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. I have also gone through the material available on record. 13. Before adverting the facts of the present case, it is necessary to consider the provisions of Rule 23 and 24 of Order XLI of C.P.C. Rule 23 and 24 of Order XLI of C.P.C. read as under:- "23. 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 copy of its judgment and order to the Court from whose decree the appeal is preferred, which 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. 23-A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. 24. 23-A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. 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. On perusal of provisions of Rule 23 Order XLI of C.P.C. it is clear that where the Court has disposed of the suit on 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. Rule 23A of Order XLI of C.P.C. provides that where the Courts from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under Rule 23. Rule 24 of Order XLI of C.P.C. provides that where the evidence on record is sufficient, appellate court may determine case finally, instead of remanding the same to the lower court. 15. It is settled principle of law that the powers under Section 96 of C.P.C. are wide. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 16. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 16. The scope and ambit of the first appellate court under Section 96 of C.P.C. have been considered in 'Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs.', (2001) 3 SCC 179 , in the said case the Hon'ble Supreme Court held (at pages 188-189) as under:- “The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” 17. In 'Madhukar & Others v. Sangram & Others', (2001) 4 SCC 756 , the Hon'ble Supreme Court reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 18. Further, in the case of 'B.V. Nagesh and another v. H.V. Sreenivasa Murthy', (2010) 13 SCC 530 , the Hon'ble Supreme Court after taking note of all the earlier judgments laid down following principle with regard to Order XLI of C.P.C. which is as follows: "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 of C.P.C. deals with appeals from original decrees. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 of C.P.C. deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must,... therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions putforth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p.188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p.758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law." 19. In 'State Bank of India & Anr. v. Emmsons International Ltd.& Anr.' (2011) 12 SCC 174 , the Hon'ble Supreme Court reiterated the aforesaid principles. 20. Also, the Hon'ble Supreme Court considered the provisions of Rule 23 of Order XLI of C.P.C. in 'P. Purushottam Reddy And Anr. v Pratap Steels Ltd', (2002) 2 SCC 686 , it was held:- "11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to Clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not-in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision." 21. Undisputedly, Section 107 of the C.P.C. empowers the appellate court to remand a case but it also empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 of Order XLI of the C.P.C. provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is settled principle of law that the first appellate court has power to remand the case if the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues. 22. In the instant case, the respondent/ plaintiff filed a suit for cancellation of sale deed dated 22.11.2007, written statement was filed by the appellant/defendant, issues were framed and the evidence was adduced by both the parties. 22. In the instant case, the respondent/ plaintiff filed a suit for cancellation of sale deed dated 22.11.2007, written statement was filed by the appellant/defendant, issues were framed and the evidence was adduced by both the parties. It is not a case where the trial court has disposed of the suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues. The first appellate court could have decided the matter on the basis of the evidence on record. 23. In view of the aforesaid discussion, the appeal is allowed, impugned judgment and decree dated 05th October, 2018 passed by learned Additional District Judge, Unnao, in Civil Appeal No.02 of 2016, are set aside and the matter is remanded back to the first appellate court to decide the appeal on merits and pass a fresh order after hearing both the parties, in accordance with law. The first appellate court is directed to decide the appeal expeditiously and preferably within a period of three months. 24. Both the parties are directed to appear before learned District Judge, Unnao on 06.01.2020 who will hear the appeal himself or assign the same to some other competent court for deciding the same according to law. 25. A copy of this judgment be sent back to the first appellate court immediately.