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2021 DIGILAW 91 (JK)

Bittu Ram v. Suram Chand

2021-03-17

SINDHU SHARMA

body2021
JUDGMENT : 1. This reference is under section 113 of the Code of Civil Procedure which has been made by the then Sub-Judge Ramban. The facts in the suit giving rise to this reference are as under; 2. A civil suit for permanent prohibitory injunction restraining defendant from interfering in possession of the land of plaintiffs measuring 01 kanal and 06 marla comprising Khasra No. 480 situated in village Parnote Tehsil and District Ramban was filed by 09 villagers against the 12 persons of the same village. The trial court passed ad interim order on 26.09.2009 restraining the defendant from interfering till objections were filed and considered. After hearing the parties, the order of injunction dated 26.09.2009, however, was vacated by the trial Court vide its order dated 23.12.2009. The plaintiff challenged the order vacating ad interim order by filing a miscellaneous appeal before District Judge, Ramban. This appeal was allowed by the District Judge Ramban vide order dated 25.10.2010 with a direction to the parties to maintain status quo on spot. 3. The defendants challenged the order dated 25.10.2010 by filing a revision under section 115 of CPC. When this revision i.e. C. Rev. No. 48/2011 came up for hearing on 30.04.2016, it was dismissed by the court. The operative portion of the same is extracted below: ".....Learned counsel appearing for the petitioners on seeing the trial court records submits that the suit itself was dismissed by the trial court on 17.12.2013. In view of the same, Civil Revision petition No. 48/2011 is dismissed as having been rendered infructuous......" 4. However, since Judgment and Decree dated 17.12.2013 has been challenged in appeal before the Principal and District Judge, the court decided the appeal by order dated 28.03.2010 and para nos. 8, 9 and 10 of the same being relevant are reproduced below: "8. There is no doubt that mere pendency of an appeal or revision in the higher or appellate/revisional forum and order of status quo, ipso-facto does not tantamount to stay of proceedings of the trial court. However the appellants have placed on record of this court, a copy of subsequent order dated 23.05.2011 passed by Hon'ble High Court of J&K, vide which record of the trial court has been sent for. It appears that the said order was never brought into the notice of Ld. Trial court. However the appellants have placed on record of this court, a copy of subsequent order dated 23.05.2011 passed by Hon'ble High Court of J&K, vide which record of the trial court has been sent for. It appears that the said order was never brought into the notice of Ld. Trial court. Summoning the record of a subordinate court certainly amounts to stay of the proceedings and the propriety demands that Ld. Court below ought to have sent and submit record of the case before the Hon'ble High Court. 9. Ld. Counsels on the rival sides have admitted the pendency of revision petition in the Hon'ble high Court of J&K, as also order dated 23.05.2011, vide which record of the trial court has been sent for. However, a already discussed, the said order was neither produced before nor brought into notice of ld. Court below and ld. Trial court being oblivious of the said order passed the impugned judgment and decree which his required to be set aside. 10. Viewed thus, the present appeal is allowed and impugned judgment and decree are set aside. Consequently the case is remanded back to the trial court and learned Trial court is directed to immediately submit record of the case before Hon'ble high Court without further lapse of time. Record of the trial court alongwith copy of this order be immediately sent back." 5. The case was remanded, but while setting aside the impugned Judgment and Decree, there is no reference to the evidence, much less any discussion of evidence and law. The order of remand could be passed either under Rule 23 or Rule 23A of order 41 CPC because both the rules are identical to Rule 23 and Rule 23A of the central code which is now applicable to the Union Territory since 2019. While Rule 23 of Order 41 of CPC applies to the cases where the suit has been decided upon preliminary point and the decree is revised by the trial court and the trial court while reversing the decree consider it necessary to remand the case to the trial court. Rule 23A of order 41 CPC is in other cases:-- "23A. While Rule 23 of Order 41 of CPC applies to the cases where the suit has been decided upon preliminary point and the decree is revised by the trial court and the trial court while reversing the decree consider it necessary to remand the case to the trial court. Rule 23A of order 41 CPC is in other cases:-- "23A. 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". 6. So far as remand in other cases, the head note is clear but it pertains to the cases other than those referred to in Rule 23 of order 41 CPC which reads as under; "23. Whether 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 direction 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". The first requisite of remand is that Judgment and Decree must be reversed, this requirement has not been satisfied so the order of remand setting aside the judgment and decree is bad. 7. The next question, therefore, is that what is the remedy for reversing the order at this stage. It is not only the lapse on the part of the then District & Sessions Judge but also an exercise of jurisdiction not vested in the court because the revision was still pending and he should have informed this court about the development, so that this court could pass appropriate order, while deciding the revision. It is not only the lapse on the part of the then District & Sessions Judge but also an exercise of jurisdiction not vested in the court because the revision was still pending and he should have informed this court about the development, so that this court could pass appropriate order, while deciding the revision. In fact, the revision being against the order dated 25.10.2010 it had no effect on the revision because the revision was against the order granting status quo after the trial court had vacated the same vide order dated 23.12.2009. 8. The dismissal of the suit had thus, also rendered the revision infructuous and it was, accordingly, dismissed. The trial court, therefore, had no justification to remand the case, even if it is assumed that the judgment and decree is set aside though it had not been done. So, the order of remand is ex facie without jurisdiction. When realizing this mistake, the District Judge on 05.09.2016 again retreated his order dated 28.03.2014 and directed the Sub-Judge to rehear the parties and decide the case afresh. It is indeed unfortunate that he did not realize the mistake committed by him despite noticing the order dated 26.06.2009 which was vacated on 23.12.2009 as the order passed by the District Judge dated 25.10.2010 against the revision was pending. 9. All this happened because District Judge did not consider the implication of revision and the order passed by him on 28.03.2014 without noticing the mandate of Order 41 Rule 23A CPC. It is already found that the order is not only illegal but without any jurisdiction as well. But the question is whether inherent powers of the court could be invoked to remedy this situation. It is possible, if there is no other provision in the court by giving recourse to section 151 of CPC as laid down by the Hon'ble Supreme Court in Manohar lal Chopra v/s Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 . This has also been retreated by the National Institute of Mental Health and Neurosciences v/s C. Parameshwara, 2005 (2) SCC 256 , para 12 of which is reproduced below: "12. This has also been retreated by the National Institute of Mental Health and Neurosciences v/s C. Parameshwara, 2005 (2) SCC 256 , para 12 of which is reproduced below: "12. In the case of Manohar Lal chopra v. Rai Bahadur Rao Raja Seth Hiralal, it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC." 10. The District Judge has wrongly passed the order of remand which has resulted in miscarriage of justice. He is, therefore, directed to hear the parties and decide the appeal on merits. This takes this Court to main question regarding mandate of the reference it appears that then the Sub-Judge Banihal has not considered the scope of section 113 and Rule 1 of Order 46 CPC as the law laid down by the Hon'ble Full Bench of this Court in case titled, Jawahar Singh and others v/s Collector Jammu decided by the Full Bench on 21.08.1997, 2010 (8) JKJ 711 [HC]. Para 2 and 5 of the same which are relevant are reproduced below: "2. The first question which requires consideration in connection with these cases is whether the reference made by the District Judge is competent. Under the Code of Civil Procedure lower courts have power to make a reference to the High Court. Section 113 enacts as follows: "Subject to such conditions and limitations as may be prescribed any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit." ....... In Mian Bakhsh v. Bodhiya, I.L.R. 50 Allahabad 839, a Full Bench of that Court remarked (see page 849) that :- "the jurisdiction of the High Court in the matter of reference under Section 113 being of a very limited character, all the circumstances must be brought out clearly to attract the jurisdiction of that Court. 5. In Mian Bakhsh v. Bodhiya, I.L.R. 50 Allahabad 839, a Full Bench of that Court remarked (see page 849) that :- "the jurisdiction of the High Court in the matter of reference under Section 113 being of a very limited character, all the circumstances must be brought out clearly to attract the jurisdiction of that Court. 5. At another place in the same judgment Sen J. at page 848 expressed an opinion: - "The powers of the subordinate judiciary to make a reference for the opinion of the High Court are hedged in by certain conditions and limitations which are to be found in Order 46 Rule 1 of the Code of Civil Procedure... " 11. It is unfortunate that Sub-Judge did not care to read the order dated 28.03.2014 or understand the same while recording his opinion, but this is not relevant in view of the proposed order. 12. In view of the aforesaid discussion, this reference is rejected as been not maintainable, however, the District t Judge Ramban is directed to hear the appeal titled Buta Ram v/s Suram Chand and others after putting notice to the parties. The aforesaid orders have resulted in wasting the relevant time of the parties, but there is no escaping from the course adopted by this court except the one proposed, as such parties will be summoned by the District Judge Ramban on 05.07.2021. 13. Disposed of along with connected application(s). 14. Record of the Court below be remitted back.