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2024 DIGILAW 1121 (PNJ)

Rajinder Kumar v. Lalit Mohan Rajprohat

2024-08-05

DEEPAK GUPTA

body2024
JUDGMENT Mr. Deepak Gupta, J. Defendant No.3 of the Civil Suit No.543 of 2009 titled as "Lalit Mohan Rajprohat v. Dushyant Bansal and others", dismissed on 17.01.2011 by the Court of learned Addl. Civil Judge (Sr. Divn.), Jalandhar, is before this Court. He is aggrieved by the order dated 15.11.2016 passed by learned Addl. District Judge, Jalandhar, remanding the appeal (CA bearing CNR N: PBJL01-011051-2012) filed by the plaintiff (respondent No.1 herein) and allowing the application under Order 41, Rule 27 CPC and further directing the trial Court to allow the amendment in pleadings, if sought by the plaintiff. 2. In order to avoid confusion, the parties shall be referred as per their status before the trial Court. 3. Brief facts of the case are that as per the case set up by the plaintiff - Lalit Mohan Rajprohat, Smt. Chanchal Rani and Shri Sanjiv Gulati were earlier recorded to be the owner of the land measuring 20 Marlas comprised in Khasra No.13142 situated at Mohalla Gobind Nagar, Jalandhar in Jamabandi for the year 1989-90. Chanchal Rani executed a general power of attorney dated 07.11.1990 regarding 10 marlas of the said land in favour of Vikas Chhabra & Manmohan Singh. Sanjiv Gulati had also executed a general Power of attorney in favour of Chanchal Rani and by virtue of the same, she further executed special power of attorney dated 26.09.1994 regarding the share of Sanjiv Gulati in favour of Vikas Chhabra & Manmohan Singh. By virtue of these power of attorneys in their favour in respect of total 20 marlas of land, Vikas Chhabra & Manmohan Singh entered into an agreement to sell of the said land in favour of plaintiff - Lalit Mohan Rajprohat and later, executed two separate sale deeds dated 30.04.1996 for 10 marlas each for consideration and then name of the plaintiff was reflected in jamabandi for the year 1999-2000. It was alleged by the plaintiff that defendant No.1 -Dushyant Bansal (respondent No.2 herein) executed a sale deed dated 12.04.2005 in favour of defendant Nos.2 and 3 (respondent No.3 and appellant herein) and on the basis of said sale deed, they tried to take forcible possession of the suit property. Plaintiff challenged the sale deed dated 12.04.2005 to be the result of fraud, fabrication and mis-representation. Plaintiff challenged the sale deed dated 12.04.2005 to be the result of fraud, fabrication and mis-representation. Though the matter was reported to the police, but it was alleged that in connivance with the police, defendant Nos.2 and 3 succeeded in taking illegal possession of the suit property. Plaintiff prayed for declaring the sale deed dated 12.04.2005 as null and void. 4. Defendants contested the suit and following issues were framed:- "1. Whether plaintiff is entitled for declaration as prayed for? OPP 2. Whether plaintiff is entitled for possession as prayed for? OPP 3. Whether plaintiff is entitled for cancellation of sale deed dated 12.04.05 executed by defendant No.1? OPP 4. Whether plaintiff is entitled for permanent injunction as prayed for? OPP 5. Whether suit is not maintainable in the present form? OPD 6. Whether plaintiff has got no locus-standi to file the present suit? OPD 7. Whether the plaintiff has not come to the court with clean hands? OPD 8. Whether site plan attached with plaint is wrong? OPD 9. Relief." " 5.1 After taking the evidence produced by the parties, suit was dismissed by the trial Court vide judgment and decree dated 17.01.2011. 5.2 Plaintiff filed appeal in the District Court. Before the First Appellate Court, the plaintiff (appellant therein) moved an application under Order 41, Rule 27 CPC. It was pleaded in the application that defendant No.1 -Dushyant Bansal had challenged the title of Chanchal Rani and Sanjiv Gulati, i.e. vendors of the plaintiff in respect of Khasra No.13142. Rather, said defendant No.1 claimed ownership of the suit property on the basis of judgment & decree dated 01.02.2002 passed in Civil Suit No.329 of 2001, on the basis of an agreement to sell dated 07.09.1974. It was alleged that the persons, who had executed the agreement to sell dated 07.09.1974, i.e. Ram Kaur etc. were not owners of the suit land and so, they could not have suffered the decree in favour of Dushyant Bansal. Plaintiff sought to place on record jamabandi for the year 1974-75. 5.3 The application was opposed by the defendants. 6. Learned First Appellate Court in para Nos.13 and 14 of the impugned order dated 15.11.2016 observed as under:- "13. Now learned counsel for the appellant wants to lead additional evidence by moving an application Wo 41 Rule 27 CPC and certified copy of the jamabandi 1974-75 has also been placed on record. 6. Learned First Appellate Court in para Nos.13 and 14 of the impugned order dated 15.11.2016 observed as under:- "13. Now learned counsel for the appellant wants to lead additional evidence by moving an application Wo 41 Rule 27 CPC and certified copy of the jamabandi 1974-75 has also been placed on record. According to this jamabandi 1974-75, Central Govt was the owner of the property involved in Civil Suit No.329 of 2001 filed by respondent Dushyant Bansal against Ram Kaur, Sujan Singh, Chhangu Mai, Shingara Singh and Mangal Singh, through their attorney Mangat Rai on the basis of an agreement to sell dated 7.2.1974. As per the revenue record, jamabandi 1974-75, none of the defendant involved in Civil Suit 329 of 2001 titled as Dushyant Bansal v. Ram Kaur and others, was the owner of the property involved in an agreement dated 7.2.1974. Now question arises in which capacity said Ram Kaur and others had executed an agreement to sell dated 7.2.1974, on the basis of which respondent Dushyant Bansal got a civil Court decree dated 1.2.2002 by filing a suit for possession in the year, 2001 on the basis of an agreement dated 7.2.1974.? So, evidence sought by the appellant to produce in additional evidence is very much essential to determine the real controversy between the parties as well as how the land of Central Govt, has been sold by the then defendants Ram Kaur and others in favour of Dushyant Bansal. So, in these circumstances, application for additional evidence filed by the appellant deserves to be allowed. 14. Now come to the judgment and decree dated 17.01.2011 is concerned, this judgment has also been passed by the I earned trial court merely on the basis of judgment and decree dated 1.2.2002 passed on the basis of an agreement to sell dated 7.2.1974 and dismissed the suit of the appellant. Whereas, said defendants in judgment and decree dated 1.2.2002 were not prima-facie the owners of the property as per jamabandi dated 1974-75 produced by the appellant in additional evidence application. Since, they were not the owners, how they could pass better title in favour of Dushyant Bansal, as per agreement dated 7.2.1974, on the basis of which judgement and decree dated 1.2.2002 Ex.D2 was passed." 7. Since, they were not the owners, how they could pass better title in favour of Dushyant Bansal, as per agreement dated 7.2.1974, on the basis of which judgement and decree dated 1.2.2002 Ex.D2 was passed." 7. After making the aforesaid observations, the First Appellate Court accepted the appeal, set aside the judgment and decree dated 17.01.2011 of the trial Court, allowed the application under Order 41, Rule 27 CPC and remanded the case back to the trial Court with the direction to decide it afresh after taking proposed additional evidence and also to allow amendment in the pleadings if sought by the appellant or by the respondent and to grant proper opportunities to the parties to lead their evidence. 8. The aforesaid order of the First Appellate Court is assailed by defendant No.3 of the case before this Court. Learned counsel for the appellant has made 03 fold submissions :- (1) The proposed additional evidence was very much in the knowledge of the plaintiff, i.e. appellant before the First Appellate Court and so, application under Order 41, Rule 27 CPC should not have been allowed. (2) There was no prayer by any of the parties before the First Appellate Court to amend the pleadings and therefore, the First Appellate Court could not have given any such direction. (3) First Appellate Court could not have remanded the matter to the trial Court for fresh decision. Learned counsel has relied upon the following authorities:- 1. "H.V. Vedavyasarchar v. Shivashankara and others", 2009(4) RCR (Civil) 172. 2. "Syeda Rahi Munnisa v. Malan Bi (dead) by LRs and others", 2016(4) RCR (Civil) 774. 3. "Sirjudheen v. Zeenath and another" 2023 (2) RCR (Civil) 55. 4. "Govt, of Karnataka and others v. K.C. Subramanya and others", 2014(13) S.C.C. 468 . 5. "Surjit Singh and others v. Varinder Singh and others" 2009(5) RCR (Civil) 669. 6. "Narain Singh and others v. Amarjeet Kaur and another" 2014(1) RCR (Civil) 870. 7. "Rachhpal Singh v. Sohan Singh" 2007(4) RCR (Civil) 166. 9. Learned counsel for the contesting respondent No.1 - plaintiff opposed the appeal and submitted that in the facts and circumstances of the case, the order passed by the First Appellate Court is proper and legal. 10. Having considered submissions of both the sides, this Court finds merit in two of the points as raised by learned counsel for the appellant. 11. 10. Having considered submissions of both the sides, this Court finds merit in two of the points as raised by learned counsel for the appellant. 11. Order 41, Rule 27 CPC provides about the production of additional evidence in Appellate Court, which reads as under:- "27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 12. As is evident from the above said provision, production of the additional evidence by the Appellate Court can be allowed in following three circumstances:- (I) If the trial Court has refused to admit evidence, which ought to have been admitted. (II) The party seeking to produce additional evidence is able to establish that despite due diligence, the proposed additional was not within his knowledge or could not be produced despite diligence at the time when the decree appealed against was passed. (III) If the Appellate Court requires any documents to be produced or any witness to be examined (a) to enable it to pronounce the judgment or (b) for any other substantial cause. 13. In the present case, it was neither the case of the plaintiff before the First Appellate Court that trial Court had refused to admit the proposed additional evidence, i.e. jamabandi for the year 1974-75 nor it was the case of the plaintiff that the said evidence was not within his knowledge. 13. In the present case, it was neither the case of the plaintiff before the First Appellate Court that trial Court had refused to admit the proposed additional evidence, i.e. jamabandi for the year 1974-75 nor it was the case of the plaintiff that the said evidence was not within his knowledge. However, the Appellate Court has given specific reasons as to why the proposed additional evidence, i.e. jamabandi for the year 1974-75 was necessary, inasmuch as it is the Central Government, which was the owner of the Property involved in Civil Suit No.329 of 2001. which had been filed by defendant No.1 - Dushyant Bansal against Ram Kaur etc. based upon an agreement to sell dated 07.01.1974 and that none of the defendants of that case Ram Kaur etc. were recorded to be the owner of the land. In these facts and circumstances, production of the jamabandi for the year 1974-75 was considered essential by the Appellate Court to determine the real controversy between the parties, as to how the land of the Central Government was sold by the defendants in Civil Suit No.329 of 2001, i.e. Ram Kaur and others to Dushyant Bansal. 14. As justifiable reasons have been given by the First Appellate Court, therefore, the contention of learned counsel for the appellant before this Court that application under Order 41, Rule 27 CPC should not have been allowed, has no merit and as such, the said contention is rejected. The authorities, i.e. Govt of Karnataka and others v. K.C. Subramanya and others (supra), Surjit Singh and others v. Varinder Singh and others (supra), Narain Singh and others v. Amarjeet Kaur and another (supra) and Rachhpal Singh v. Sohan Singh (supra) cited by learned counsel for the appellant are not applicable to the facts and circumstances of this case. 15. The second contention raised by learned counsel for the appellant has substance. No prayer had been made either by the plaintiff (appellant before the First Appellate Court) or by the opposite party seeking amendment in their pleadings. As such, direction given by the First Appellate Court to the trial Court to allow to amend the pleadings, if sought by any of the parties, was absolutely improper. As such, said direction of the First Appellate Court cannot at all be justified. 16. As such, direction given by the First Appellate Court to the trial Court to allow to amend the pleadings, if sought by any of the parties, was absolutely improper. As such, said direction of the First Appellate Court cannot at all be justified. 16. Coming to the third point raised by learned counsel for the appellant, Order 41, Rule 28 CPC reads as under:- "28. Mode of taking additional evidence.-Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court" 17. A bare perusal of the above said provision clearly indicates that when the application for adducing additional evidence is allowed, as in the present case, the Appellate Court has two options open to it:- (i) it may record the evidence itself, or (ii) it may direct the court from whose decree the appeal is preferred (trial Court in this case) to do so. This provision does not indicate that the Appellate Court can remand the case in above circumstances to the court from whose decree the appeal is preferred. Rather, in case the appellate court adopts the second option i.e., direct the court from whose decree the appeal is preferred (trial Court in this case) to take additional evidence, then the direction is to go further to the effect that concerned court, after recording evidence, has to return it to the appellate court. 18. Of course, the trial Court has the power to remand the case, but only in such circumstances, which are covered under Order 41, Rule 23, 23-A or 25 CPC. 18. Of course, the trial Court has the power to remand the case, but only in such circumstances, which are covered under Order 41, Rule 23, 23-A or 25 CPC. These rules may be tabulated as under: Order XLI Rule 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 Pre-requisites: The court, whose decree is under appeal, has disposed of the suit upon a preliminary point. The appellate court has reversed the decree. Options open for appellate court: It may remand the case may direct what issue or issues shall be tried in the case so remanded What is to be done by the appellate court: To send a copy of its judgment and order to the concerned court Directions to be sent by the appellate court: To readmit the suit at original number in relevant register To proceed to determine the suit The consequence: the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. Pre-requisites: The court, whose decree is under appeal, has disposed of the suit otherwise than a preliminary point. The appellate court has reversed the decree. Pre-requisites: The court, whose decree is under appeal, has disposed of the suit otherwise than a preliminary point. The appellate court has reversed the decree. Retrial is considered necessary Options open for appellate court: [Same as under Rule 23] Rule 25 Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from— Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time." Pre-requisites: The court, whose decree is under appeal, (ababab) has disposed of the suit has (ababab) omitted to frame any issue or (ababab) omitted to try any issue, or (ababab) to determine any question of fact The appellate court considers it essential for the right decision of the suit upon the merits Options open for appellate court: May frame issues, and refers the same for trial to the concerned court To direct such court to take the additional evidence required What the trial court has to do: To proceed to try such issues, and To return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time 19. Thus, under Rule 23, the Appellate Court can remand, when the matter was disposed of by the trial Court upon a preliminary issue and the decree is reversed in appeal. Necessary direction can be given by the Appellate Court as to what issues are to be tried on the matter being remanded. Thus, under Rule 23, the Appellate Court can remand, when the matter was disposed of by the trial Court upon a preliminary issue and the decree is reversed in appeal. Necessary direction can be given by the Appellate Court as to what issues are to be tried on the matter being remanded. Under Rule 23-A, when the trial Court has disposed of the case, otherwise than on a preliminary issue and the decree is reversed in appeal and re-trial is considered necessary, then the Appellate Court has the powers as per Rule 23. Under Rule 25, order for remand can be made by the Appellate Court, when the trial Court has omitted to frame or try any issue or determine any question of fact and Appellate Court considers it to be essential for the right decision of the suit on merits. 20. In the present case, none of the situations as are referred in Rule 23, 23-A and 25 of Order 41 of CPC were before the First Appellate Court and as such, the remand order could not have been passed. 21. In H.V. Vedavyasarchar v. Shivashankara and others (supra), it was held by Hon'ble Supreme Court as under:- "6. However, so far as the second contention raised by the learned counsel for the appellant is concerned, in our opinion, the same has substance. When an application for adducing additional evidence is allowed, the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so. Order 41, Rule 28 of the Civil Procedure Code reads as under:- "28. Mode of taking additional evidence - Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court." 7. For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41, Rule 23, Order 41, Rule 23A or Order 41, Rule 25 of the Code. None of the said provisions have any application in the instant case. 8 This Court in Shanti Devi & Ors. Such an order of remand could be only in terms of Order 41, Rule 23, Order 41, Rule 23A or Order 41, Rule 25 of the Code. None of the said provisions have any application in the instant case. 8 This Court in Shanti Devi & Ors. v. Daropti Devi And Others, 2007(1) RCR (Civil) 411: 2007(1) RAJ 15: (2006)13 SCC 775 has held as under: "But the same by itself could not be a ground for remitting the entire suit to the learned trial judge upon setting aside the decree of the learned trial court. The power of remand vests in the appellate court either in terms of Order 41, Rule 23 and 23A or Order 41, Rule 25 of the Civil Procedure Code. Issue 4 was held to have been wrongly framed. Onus of proof was also wrongly placed and only in that view of the matter the High Court thought it fit to remit it to the learned trial judge to determine a question of fact, which according to it was essential upon framing the issue." 22. In another case titled as Syeda Rahi Munnisa v. Malan Bi (dead) by LRs and others (supra), it has been held by Hon'ble Supreme Court as under:" 35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in Order 41, Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 of CPC for remanding the case to the trial court. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals. 23. In view of the legal position as expounded above by Hon'ble the Apex Court, it is thus clear that before seeking remand, it is obligatory upon the appellant to bring the case under Order 41, Rule 23, 23-A or 25 of CPC and the Appellate Court is required to record reasons as to why it has taken recourse to anyone out of three Rules of Order 41 of CPC for remanding the case to the trial Court. 24. In view of the aforesaid discussion, it is held that the order dated 15.11.2016 passed by the First Appellate Court remanding the matter to the trial Court, after allowing application under Order 41, Rule 27 CPC, cannot be sustained in the eyes of law, as present case is not covered under either of the provision of Order 41, Rule 23, 23-A or 25 of CPC. 25. Consequently, the present appeal is hereby disposed of in the following terms:- (a) The order of the First Appellate Court allowing the application under Order 41, Rule 27 CPC for production of the additional evidence by the plaintiff (appellant before the First Appellate Court), is sustained. 25. Consequently, the present appeal is hereby disposed of in the following terms:- (a) The order of the First Appellate Court allowing the application under Order 41, Rule 27 CPC for production of the additional evidence by the plaintiff (appellant before the First Appellate Court), is sustained. (b) Direction by the First Appellate Court to the trial Court to allow amendment in the pleadings, if sought by any of the parties and then to grant opportunities to them to lead evidence, is hereby set aside. (c) The direction of the First Appellate Court remanding the case back to the trial Court to decide it afresh after taking proposed additional evidence, is hereby set aside. 26. Since the proposed additional evidence is only a Jamabandi for the year 1974-75, which can be adduced before the First Appellate Court itself, therefore, the First Appellate Court is hereby directed to take the said proposed additional evidence and then proceed further with the appeal as filed by the plaintiff-respondent No.1, in accordance with law. Disposed of accordingly.