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2020 DIGILAW 319 (CAL)

Kalyan Kumar Halder v. Santosh Kumar Halder

2020-02-28

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - The instant First Miscellaneous Appeal is directed against the judgement and order of remand passed by the learned Additional District Judge, 2nd Court, Barrackpore in Title Appeal No. 61 of 2013 analogously with Title Appeal No. 62 of 2013 on 27th January, 2016. 2. Suffice it to say that the appellants as plaintiffs filed Title Suit No. 245 of 2001 against the defendant for eviction and recovery of khas possession in respect of the suit property along with consequential reliefs impleading the defendant as a ranked trespasser in respect of the same. The defendant, on the other hand, instituted Title Suit No. 338 of 1989, since renumbered as Title Suit No. 298 of 1999 against the plaintiffs of the subsequent suit praying for declaration of his title, eviction of the defendants on revocation of licence and permanent injunction. 3. Both the suits were heard analogously. The learned Trial Judge decreed the suit filed by the appellants and dismissed the suit filed by the present respondents. The respondents preferred two appeals against the judgement and decree passed in Title Suit No. 245 of 2001 and judgement and decree of dismissal passed in Title Suit No. 298 of 1999 which were registered as Title Appeal No. 61 of 2013 and Title Appeal No. 62 of 2013. 4. Both the aforesaid appeals came up for hearing before the learned Additional District Judge, 2nd Court at Barrackpore, when the learned Judge vide his judgement dated 27th January, 2016 allowed the appeal by setting aside judgements and decrees passed in the aforesaid suits and remanding the suits back to the learned Trial Court. The present appellants have assailed the said judgement and order of remand passed by the learned First Appellate Court in the above-mentioned appeals by preferring two separate miscellaneous appeals. These appeals came up for hearing for admission before the Hon'ble Division Bench of this Court and vide order dated 20th March, 2017, the Hon'ble Division Bench passed an order admitting the appeals to be heard. However, on perusal of the order passed by the Hon'ble Division Bench on 20th March, 2017, I find that no question of law was formulated on the basis of which the appeal is required to be heard. However, on perusal of the order passed by the Hon'ble Division Bench on 20th March, 2017, I find that no question of law was formulated on the basis of which the appeal is required to be heard. Accordingly, at the time of hearing of this appeal this Court has formulated the following questions of law for adjudication of the appeal:- (i) Whether the learned Judge in First Appellate Court erred in law in remanding the suits for fresh trial without taking any contrary view against the finding made by the learned Trial Judge while disposing of the said suits and thereby the order of remand was passed disobeying the statutory precondition contained in order XLI Rule 23 of the Code of Civil Procedure; (ii) Whether the learned Judge in First Appellate Court erred in law in remanding the suits back for fresh trial only because the learned Trial Judge did not discuss the issues framed in the suits separately and all the issues were taken up together for determination; (iii) Whether the judgement and decree passed by the learned Trial Court in both the suits were passed in compliance with the provision of order XX Rule 5 of the Code of Civil Procedure. 5. For the sake of convenience and gravity of discussion I take up the first two questions of law together for discussion. 6. The provisions of remanding a suit for trial are provided in Rule 23 and Rule 23A of order XLI of the Code of Civil Procedure. The said provisions 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 judgement 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." "23A. Remand in other cases. 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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23." 7. Rule 23 of order XLI is applicable when a suit is disposed of upon a preliminary point and the decree passed by the Trial Court is reversed in appeal, the Appellate Court may remand the case with a direction as to what issue or issues shall be tried in the case so remanded and upon such order the learned Trial Judge shall proceed to determine the suit, if required even by taking fresh evidence. 8. Order 23A, on the other hand, deals with remand in other cases where the suit is disposed of otherwise than a preliminary point and the decree is reversed in appeal and a retrial is considered necessarily. 9. The learned Judge in First Appellate Court was pleased to set aside the judgement and decree passed by the Trial Court in the said suits on the following observation:- "I have perused the impugned judgement once again and found that the Court below has written the judgement elaborating the facts, the evidence and relying the celebrated judgements of Hon'ble Courts. But while writing the impugned judgement all efforts has been taken by the learned Court below, the same has not been written as per the provision of order XIV Rule 2 of the Code of Civil Procedure. I find the writing is clumsy and not issue wise. The reason for decision does not show which issue has been decided in whose favour though the learned Court below has attempted to clarify all the argumentative points but never made it clear as per the demand of law. Analyzing the impugned judgement of the Court below I find there is lack of procedural approach. The Court below perhaps was in haste and, therefore, the citation of case law as mentioned in the impugned judgement left incomplete without assigning the name of the parties. A complete reading of the impugned judgement instill the mind of this Court that learned Court below should be given an opportunity to rewrite the judgement and while doing so, the Court below may formulate relevant issue if require. A complete reading of the impugned judgement instill the mind of this Court that learned Court below should be given an opportunity to rewrite the judgement and while doing so, the Court below may formulate relevant issue if require. I also find that the Court below was less justified in appreciating the evidence on record and consequently concluded leaving a room for this Court to send the suit in remand. Therefore, in my considered view, the instant appeal has merit to stand and must be allowed and the judgement dated 03.05.2013 and the decree thereof in c/w T. S. 298 of 1999 analogous with T.S. 245 of 2001 should be set aside." 10. A plain reading of the observation made by learned First Appellate Court shows that the learned Judge in the First Appellate Court found that the learned Trial Court wrote the judgement elaborating the facts, the evidence and relying on the celebrated judgements of the Hon'ble Courts but the learned Trial Judge failed to comply with the provision of order XIV Rule 2 of the Code of Civil Procedure while writing the judgement. Accordingly, the learned First Appellate Court found the judgement clumsy and not issue wise. The learned Trial Court further observed that the Court below perhaps was in haste. Therefore, the citation of case law as mentioned in the impugned judgement left incomplete without assigning the name of the parties. 11. Order XIV Rule 2 of the Code of Civil Procedure mandates the Court to pronounce the judgements on all issues. Sub-rule 1 of Rule 2 of order XIV says, "notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgement on all issues". 11. Order XIV Rule 2 of the Code of Civil Procedure mandates the Court to pronounce the judgements on all issues. Sub-rule 1 of Rule 2 of order XIV says, "notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgement on all issues". Sub-rule 2 states, "where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case of any part thereof may be disposed of an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision of that issue". 12. Thus, under order XIV Rule 2(1) the Court is under obligation to decide a suit on all issues of law and fact. Sub-rule 2 culls out an exception where an issue of law touching the jurisdiction of the Court or express or implied bar to the suit created by any law for the time being in force, may be decided as preliminary issues before deciding other issues. 13. Thus, the statute provides that if on preliminary issue relating to inherent lack of jurisdiction or express or implied bar in entertaining the suit, a Civil Court cannot entertain a suit, the suit may be disposed of on said preliminary issue only. In all other cases, the suit must be decided on all issues. 14. Bearing in mind the statutory provision and the observation made by the learned Judge in First Appellate Court let me consider the judgement passed by the learned Trial Court. 15. The learned Trial Judge recorded the issues after narration of the pleadings of the parties. After recording the issues the learned Trial Judge elaborately recorded the names of the witnesses who deposed in the suit and the documents which were marked exhibits on behalf of the parties. Then he proceeded to decide the issues with the following introduction :- "The issues are taken up together for deciding them as they are mostly inter-related, as such, to avoid repetition". Then he proceeded to decide the issues with the following introduction :- "The issues are taken up together for deciding them as they are mostly inter-related, as such, to avoid repetition". Then the learned Trial Judge proceeded with to decide the respective cases of the parties, evidence on record and eventually all the issues were answered not separately but taking all of them together. The learned Judge in First Appellate Court found fault with the learned Trial Judge only on the point that the issues were not separately dealt with, though the learned Judge in First Appellate Court never disputed any finding made by the learned Trial Judge in his judgement. On the contrary, I have already pointed out that the learned Judge in First Appellate Court found that the Court below has written the judgement elaborating the facts, the evidence and relying on the celebrated judgements of the Hon'ble Courts. The order of remand was passed on the ground that there was lack of procedural approach by the Trial Court. 16. Mr. Sanjoy Mukherjee, learned Advocate for the appellants submits that in order to set aside a judgement passed by the Trial Court it is the incumbent duty of the Hon'ble Court to arrive at an independent decision on what point/points the learned First Appellate Court differs from the observation of the learned Trial Judge. In the instant case, the learned Judge in First Appellate Court practically supported the finding of the learned Trial Judge. The judgement was set aside only because the issues were not dealt with separately. On this point Mr. Mukherjee refers to a decision of the Hon'ble Supreme Court in the case of Municipal Corporation, Hyderabad -Vs.- Sunder Singh, (2008) 8 SCC 485 . The factual background of the said decision is that the High Court of judicature of Hyderabad was pleased to set aside the judgement and order dated 24th April, 1998 passed by the VIIth Senior Civil Judge, City Civil Court, Hyderabad and remanded the matter back to the learned Trial Judge. The Hon'ble Supreme Court was pleased to hold that before passing an order of remand the Appellate Court must disagree with the findings of the Trial Court on the issue. Only when the decree is to be reversed in appeal, the Appellate Court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. The Hon'ble Supreme Court was pleased to hold that before passing an order of remand the Appellate Court must disagree with the findings of the Trial Court on the issue. Only when the decree is to be reversed in appeal, the Appellate Court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the Appellate Court. The Hon'ble Supreme Court further cautioned that an order of remand should not be passed routinely. It is not to be exercised by the Appellate Court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the Trial Court, it has to come with a proper finding of its own. The Appellate Court cannot shirk its duties. 17. It is further pointed out by Mr. Mukherjee that the learned Trial Judge did not dispose of the suits on preliminary points. The suits were decided on all points including the points of maintainability and other factual issues. The learned Judge in First Appellate Court never considered that issues were not properly framed or that the evidence on record was not sufficient to decide the issues or that the evidence was not appreciated by the learned Court of trial and the suit is required to be tried afresh. When the issues were on record the evidence on record adduced by the parties were sufficient, proper course ought to have been for the First Appellate Court was to decide the issues on its own and not by remanding the suit for trial. 18. Mr. Tarak Nath Halder, learned Advocate for the respondents, on the other hand, submits that the learned Judge in First Appellate Court did not commit any error in remanding the suits for fresh trial to the Trial Court. In support of his contention Mr. Halder refers to a decision of Himachal Pradesh High Court in the Case of Om Prakash & Ors. -Vs.- State of Himachal Pradesh & Ors., (2001) AIR H.P. 18 . Mr. Halder specifically refers paragraphs 12, 13 and 14 of the said judgement which is quoted below:- 12. In support of his contention Mr. Halder refers to a decision of Himachal Pradesh High Court in the Case of Om Prakash & Ors. -Vs.- State of Himachal Pradesh & Ors., (2001) AIR H.P. 18 . Mr. Halder specifically refers paragraphs 12, 13 and 14 of the said judgement which is quoted below:- 12. "In the present case, Trial Court has framed all the issues and was supposed to give separate findings on each issue, as admittedly the findings upon any one or more of them are not sufficient for the decision of the suit. By simply enumerating the evidence and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a judgment and decree on the points in issue or controversy, is vitiated. It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court in M/s. Fomento Resorts and Hotels Ltd. - Vs.- Gustavo Ranato da Cruz Pinto, (1985) AIR SC 736 , has held in paragraph 27 as under: "In a matter of this nature where several contentions factual and legal are urged and when there is a scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point." (Also see Ram Ranbijaya Prasad Singh -Vs.- Sukar Ahir, (1947) AIR Patna 334 (SB); Ambor Ali -Vs.- Nichar Ali, (1950) AIR Gauhati 79 ; Ahmed Ali -Vs.- Shaik Ahmed,1955 AIR Hyderabad 268 and Swaminathan Ambalam -Vs.- P. K. Nagaraja Pillai, (1973) AIR Madras 110) . Therefore, by not deciding issues nos. 1 to 5 separately by referring to material evidence on each issue for and against the parties and giving reasons for its acceptance or rejection, the impugned judgment is vitiated. 13. Therefore, by not deciding issues nos. 1 to 5 separately by referring to material evidence on each issue for and against the parties and giving reasons for its acceptance or rejection, the impugned judgment is vitiated. 13. The learned Counsel for the defendants have impressed upon us that we may examine the conclusion arrived at by the District Judge by referring to the evidence on record and give findings on each issue in our capacity as first appellate Court, as we are dealing with Regular First Appeal. We are unable to accept this submission as it will not be just and fair and it will deprive the losing party of a right to appeal before this Court. 14. In these circumstances, we have no alternative but to accept this appeal and set aside the impugned decree and judgment and remand this case to the trial Court with direction to restore it to its original number and decide it in accordance with law by giving its findings on issues nos. 1 to 5 separately. No order as to costs." 19. It is submitted by Mr. Halder that principle laid down in the aforesaid decision is squarely applicable in the instant case. In the said report, the learned Trial Court failed to give separate findings on each issue. The Hon'ble Himachal Pradesh High Court further held that if the suit is not remanded and the appeal is decided on merit by the High Court itself, the appellent will lose his important forum for appeal before the High Court. In the instant case also, it is urged by Mr. Halder that if the First Appellate Court is directed to dispose of the appeal on merit, the respondent will lose a forum for filing first appeal. 20. I have carefully perused the judgement delivered by the Himachal Pradesh High Court. The judgement was delivered in connection with a first appeal assailing the judgement and decree passed by the learned District Judge, Kangra at Dharamsala. The First Appellate Court is the High Court against a judgement and decree passed by the learned District Judge. In the instant case, if this Court directs the First Appellate Court to dispose of the appeal on merit after deciding the issues separately on the basis of evidence on record, the respondents' right to file an appeal before this Court in the event they lose will not be closed. In the instant case, if this Court directs the First Appellate Court to dispose of the appeal on merit after deciding the issues separately on the basis of evidence on record, the respondents' right to file an appeal before this Court in the event they lose will not be closed. Relying on the decision of the Hon'ble Supreme Court in Sunder Singh (supra) this Court finds that a Court of appeal should not pass an order of remand in a routine manner. The order of remand should be passed in exceptional cases where it is not possible for the learned Appellate Court to decide the dispute between the parties on merit on available evidence on record. 21. In the instant case, I have already recorded that the evidence adduced by the parties in both the suits were sufficient. The learned First Appellate Court has no grievance with regard to appreciation of evidence and dealing with the facts and law by the Trial Court. The suits were remanded back for fresh trial because of the fact that the issues were not separately dealt with. The Appellate Court cannot shirk its duties to dispose of the appeal on merit. 22. Before I part with, I must state that order XX Rule 5 of the Code of Civil Procedure directs the Court to state its finding or decision with reasons upon each separate issue, unless the finding upon one or more of the issues is sufficient for decision of the suit. There is no dispute on such statutory provision. The issues are to be dealt with separately. At the same time, this provision does not debar a Court of fact to decide the issues which are inter-related or inter-connected taking them together in composite discussion. 23. For the reasons stated above, I am inclined to allow the instant appeals. 24. First Appellate Court is directed to dispose of both the appeals on merit taking the issues separately for discussion. 25. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.