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2019 DIGILAW 282 (UTT)

PARAMVEER SINGH v. TIRATH SINGH

2019-04-09

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. Appeal from order under Order 43 Rule 1(u) of Code of Civil Procedure is preferred against the judgment and order dated 18.05.2017, passed by District Judge, Haridwar, in regular Civil Appeal no. 10 of 2016, Tirath Singh vs Bhajan Singh and others, whereby the first appeal filed by the respondent no. 1 against the judgment and decree dated 17.09.2017, passed by learned Civil Judge (J.D.), Haridwar in O.S. no. 215 of 2002 has been allowed and the matter was remanded back to the trial court. 2. Brief facts of the case are that the first respondent/plaintiff filed O.S. no. 215 of 2002, Tirath Singh vs Bhajan Singh and others for cancellation of sale deed dated 15.10.1996 executed by defendant no. 1 Bhajan Singh in favour of defendant nos. 2, 3 and 4 exercising powers given to him by plaintiff Tirath Singh through registered Power of Attorney dated 24.04.1980. the appellants and respondent nos. 2 and 3 filed their written statement denying the plaint averments and stated that the plaintiff himself has executed the registered Power of Attorney in favour of defendant no. 1, who in turn executed the sale deed dated 15.10.1996 after taking sale consideration from the vendee. 3. Learned trial court, on the basis of pleadings of the parties, formulated following issues: i) Whether defendant no. 1 was appointed Power of Attorney? ii) Whether the sale deed dated 15.10.1996 is null and void? iii) Whether the valuation of suit is wrongly calculated and suit is under valued? iv) Whether the suit is barred by Section 49 of the Consolidation of Land Holdings Act? v) Whether the plaintiff is entitled for any relief? If yes, its effect. 4. Learned trial court has recorded its findings on all the issues and held that the defendant no. 1 was appointed the Power of Attorney holder by the plaintiff himself. The sale deed dated 15.10.1996 was executed by the Power of Attorney holder after taking the sale consideration and decided issue nos. (i) and (ii) against the plaintiff. While recording findings on issue no. (iv), the trial court has held that though the suit is not barred by the provisions of Section 49 of the Consolidation of Land Holdings, but since the finding nos. (i) and (ii) were recorded against the plaintiff, the learned trial court vide judgment and decree dated 17.09.2014, dismissed the suit. While recording findings on issue no. (iv), the trial court has held that though the suit is not barred by the provisions of Section 49 of the Consolidation of Land Holdings, but since the finding nos. (i) and (ii) were recorded against the plaintiff, the learned trial court vide judgment and decree dated 17.09.2014, dismissed the suit. Feeling aggrieved, a civil appeal was filed by the plaintiff. 5. Learned First Appellate Court without adverting to the findings on any of the issues and without reversing the findings recorded by the trial court on the issues in a cursory and crypticmanner, allowed the appeal by impugned judgment and order dated 18.05.2017 and remanded the matter to the learned trial court to decide the suit after recasting the issues. 6. Learned counsel for the appellants/defendants would submit that the First Appellate Court, which was the last court on facts and law, has erred in law in allowing the appeal and in remanding the matter back to the trial court without setting aside the findings recorded by the court below. Learned counsel would further submit that by means of impugned order, the First Appellate Court has extended undue benefit in favour of the plaintiff by remanding the matter without assigning any reasons for doing so. It is also submitted that though power to remand the matter vests with the Appellate Court, but the same could be exercised under Order 41 Rule 23 of CPC. 7. Order 41 Rule 23 of the Code of Civil Procedure, 1908, is extracted here-in-below for convenience: “Order 41 : APPEALS FROM ORIGINAL DECREES 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, 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." 8. Placing reliance upon Rule 23 of Order 41 of CPC, learned counsel for the appellants/defendants would submit that none of the ingredients were fulfilled in the impugned judgment passed by the First Appellate Court as the matter was not decided by the trial court on a preliminary issue/preliminary point and the Appellate Court has not framed any point or the issue to be determined by the trial court, thus, the learned First Appellate Court has committed illegality in setting aside the well reasoned judgment and decree passed by the trial court and in remanding the matter back to the trial court. 9. Learned counsel for the appellants/defendants placed reliance upon the judgment passed by the Allahabad High Court in Lakhmi and others vs Jugendra Lal and another 2014 (32) LCD 1824 that the provisions of Order 41 Rule 31 CPC is mandatory as held by the Hon'ble Supreme Court in the case of Union of India and another vs Ranchod and others. 10. Learned counsel for the respondent no. 1/plaintiff would submit that since a Power of Attorney was executed by the plaintiff in favour of defendant no. 1 Bhajan Singh, therefore, the First Appellate Court has considered this fact and after recording reasons has passed the order of remand directing the trial court to recast the issues and decide the same, in accordance with law, and would submit that there is no illegality or jurisdictional error in the judgment passed by the First Appellate Court in remanding the matter. Learned counsel for the respondent no. 1 has placed reliance on the judgment rendered by Allahabad High Court in Smt. Sayatri Devi and others vs Smt. Kamla Devi and others, wherein on appeal being preferred against remand order involving the controversy regarding cancellation of two sale deeds in original suit, both sale deeds were in respect of different lands situated at Hardoi and Sitapur, respectively. The Appellate Court while remanding the matter back to the trial court has framed additional issue no. 2 as to whether the Civil Judge, Sitapur had jurisdiction to adjudicate and try the suit regarding cancellation of sale deed executed in Hardoi. The Learned Judge of Allahabad High Court has held that the first appellate court has exercised its jurisdiction in remanding the matter, in accordance with law, and as such, the impugned order does not call for any interference. Therefore, the remand was held proper. The Learned Judge of Allahabad High Court has held that the first appellate court has exercised its jurisdiction in remanding the matter, in accordance with law, and as such, the impugned order does not call for any interference. Therefore, the remand was held proper. Reliance is also placed on the judgment rendered by Hon'ble Apex Court in Pasupuleti Venkateswarlu vs The Motor and General Traders 1975 (1) SCC 770 , wherein it has been held that where finding on a specific point is required, remittal of whole case by the Appellate Court is illegal. Further reliance is placed on the judgment passed by Hon'ble Supreme Court in Bachahan Devi and another vs Nagar Nigam, Gorakhpur and another 2008 (12) SCC 372 , wherein the First Appellate Court was directed to decide the matter on merits and it was further directed that the appellate court should rarely remand the matter back, and not as a mater of routine. 11. I have gone through the judgments cited by learned counsel for respondent no. 1/plaintiff. The ratio of the judgment cited by him are not applicable to the facts and circumstances of the present case. 12. A plain reading of Rule 23 of Order 41 of CPC would reflect that an order of remand can be passed after setting aside the findings recorded by the appellant court and, particularly, when the matter has been decided by the trial court on preliminary point. None of the conditions as envisaged in Rule 23 of Order 41 of CPC are applicable. Furthermore, there can be a contingency of remanding the matter to the lower court where the proper issue has not been framed by the trial court and any further evidence is required in that regard and not otherwise in a routine manner. 13. Rule 31 of Order 41 of CPC prescribes the manner for deciding the first appeal. The First Appellate Court, which is the last court of facts and law, is duty bound to decide the appeal in view of Rule 31 of Order 41 of CPC. 13. Rule 31 of Order 41 of CPC prescribes the manner for deciding the first appeal. The First Appellate Court, which is the last court of facts and law, is duty bound to decide the appeal in view of Rule 31 of Order 41 of CPC. Firstly, the appellate court has to record its findings after framing the point of determination and thereafter render its decision on the point, then will record the reasons for the decision on arriving to the conclusion and where the appellate court reverses the findings of the judgment and decree in appeal or varied, then will say in regard to the relief to which the appellant is entitled. 14. Hon'ble Apex Court in the recent judgment of Jamila Begum (dead) through L.R. vs Shami Mohd. (dead) through L.Rs. and another 2019 (2) SCC 727 , has elaborately discussed the provisions contained in Order 41 Rule 31 of CPC. Paragraph nos. 37 and 38 of said judgment are relevant and are reproduced hereunder: “37. There is no justification for the first appellate court to record findings based on the arguments advanced. Even in the absence of pleadings and evidence, the first appellate court recorded finding that there was no necessity for Wali Mohd. to execute mortgage deed and within short while thereafter, sale deed as he never performed Haj Pilgrimage and never did any business as written in the documents. Likewise, the first appellate court recorded its own findings on inadequacy of consideration for the sale deed, even though no such plea was taken by Respondent 1 Shami Mohd. 38. The first appellate court being the final court of fact has jurisdiction to reverse or affirm the findings of the trial court. Considering the nature and scope of the first appellate court in Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 , it was held as under: “15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: ‘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 CPC 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 CPC 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 put forth, 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." 15. A regular appeal should not be passed as its deems fit and proper to the First Appellate Court, rather it should be passed in exceptional cases, when the First Appellate Court is unable to decide the appeal on merit in the absence of any additional evidence and the order of remand should not be just a camouflage or mere eyewash. The Hon'ble Apex Court in catena of judgments has deprecated this practice of remanding the matter by the First Appellate Court or not deciding the First Appeal in the true spirit contained in Rule 31 of Order 41 CPC. An unnecessary order of remand gives unnecessary life to litigation, which ultimately shake the faith of the litigants in the judicial system. 16. An unnecessary order of remand gives unnecessary life to litigation, which ultimately shake the faith of the litigants in the judicial system. 16. Having heard learned counsel for the parties, after perusal of the impugned judgment passed by the First Appellate Court and in view of the foregoing discussion as above, I am of the firm view that the learned Appellate Court has committed illegality in remanding the matter to the trial court even without reversing/setting aside the findings recorded by the learned trial court. Since the First Appellate Court has remanded the matter by impugned order dated 18.05.2017, the same is not sustainable in the eyes of law and is liable to the set aside. 17. The appeal from order is allowed. The order impugned is hereby set aside. The matter is remanded back to the First Appellate Court to decide the appeal, in accordance with law, keeping in view the provisions contained in Rule 31 of Order 41 CPC. Lower court record be returned to the court concerned forthwith. No order as to costs. 18. Before parting with the judgment in view of the fact that the civil appeal has arisen out of O.S. no. 215 of 2002 and appeal was filed in the year 2016, the First Appellate Court shall make an endeavour to decide the appeal, in accordance with law, preferably within a period of three months from today. Since all the parties are represented through their respective counsel before the Court, the parties shall remain present before the District Judge, Haridwar on 26.04.2019. 19. No order as to costs.