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Smt. Urmila Devi vs Shyam Sunder & Ors. on 10 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 6

Case :- FIRST APPEAL FROM ORDER No. – 62 of 1991

Appellant :- Smt. Urmila Devi

Respondent :- Shyam Sunder Ors.

Counsel for Appellant :- S.K. Mehrotra

Counsel for Respondent :- J.C. Srivastava

Hon’ble Jaspreet Singh,J.

Heard the learned counsel for the appellant. None has put in appearance on behalf of the respondent, despite service was found sufficient by this Court by means of the order dated 26.09.2019.

The instant appeal has been preferred under Order 43 Rule 1 (u) C.P.C. being aggrieved against the judgment of remand dated 05.02.1991 passed in Civil Appeal No. 279 of 1984 by the Vth Additional District Judge, Faizabad whereby it set aside the judgment and decree dated 15.10.1984 passed in O.S. No. 126 of 1984 requiring for a de-novo trial permitting the parties to amend their pleadings as well as to lead evidence if they so desire.

In order to appreciate the contention raised by the learned counsel for the appellant, the fact giving rise to the aforesaid appeal may be noticed first:-

The plaintiff Smt. Urmila Devi/the appellant herein had instituted a suit seeking cancellation of the sale deed dated 18.06.1980 executed by Sri Shyam Sunder in favour of Sri Shyam Ghar, Dakhibal and Ramnath who were the defendants no. 1 and 2 to 4 respectively. The prime contention of Smt. Urmila Devi was that the property in question initially belonged to one Sri Bhagwan Dutt. After the death of Sri Bhagwan Dutt the property was recorded in the name of Sri Shyam Sunder and Sri Shyam Dhar. Both the defendants nos. 1 and 2 were real brothers, however, they were staying separately and also did not have a common mess. Unfortunately, Raja Ram who is the son of Sri Shyam Dhar expired leaving behind Smt. Urmila Devi, the plaintiff as his widow. Certain allegations regarding malafidies and fickle character of Shyam Dhar was alleged by Smt. Urmila Devi. It was further stated that after the death of her husband Sri Raja Ram she was entitled to be maintained and had a right in the property in question, however, her father-in-law namely Sri Shyam Dhar in order to defeat the rights of the plaintiff had executed a sale deed in favour of defendant nos. 3 and 4 namely Digbhal and Ram Nath and as such for the reasons contained in paragraph 14 of the plaint in suit, the suit seeking cancellation of the sale deed was instituted on 31.08.1981.

The primary defence taken by the defendants was that the plaintiff did not have a right to institute the suit, inasmuch as, as she was not a creditor. Moreover, she was only claiming her rights of maintenance for which the ingredients as set out in Section 19 of Hindu Adoption and Maintenance Act were not satisfied. Apart from the fact that the plea that the sale deed was executed for non-payment of sale consideration, was not open to her since the executant of the sale deed had not alleged such facts in her lifetime.

The suit came to be contested and the Trial Court framed one, all encompassing, issue to the effect whether in light of the grounds contained in paragraph 14 of the plaint, the said sale deed dated 18.06.1980 is liable to be cancelled.

After the parties led evidence, the Trial Court by means of judgment and decree dated 15.10.1984 decreed the suit and cancelled the sale deed dated 18.06.1980. The defendants preferred a regular Civil Appeal bearing Civil Appeal No. 279 of 1984. The lower appellate court considering that the learned Munsif did not consider the evidence which was available on record regarding the fact that the sale consideration was paid also regarding the ingredients regarding Section 19 of Hindu Adoption and Maintenance Act as well as that the plaintiff did not have a right to challenge the sale deed and found that these issues were not considered by the Trial Court, accordingly, it remanded the matter and the operative portion of the aforesaid judgment dated 05.02.1991 reads as under:-

“The learned Munsif has also not taken into account the statements of D.W. 1 Ram Karan and D.W. 3 Shyam Bihari who are the marginal witnesses of the sale-deed before whom the sale consideration was paid and in very hurriedly manner has held that the sale deed was executed in order to defeat or delay the creditor.

Considering the entire facts and circumstances, I am of the view that the learned Munsif has not rightly decided the matter and the case should be remanded back to the court below for fresh decision in accordance with the observations made in the body of my judgment. Parties may be permitted to amend their pleadings in order to incorporate the facts covered under the provisions of Sections 39 and 53 of T.P. Act and the parties, if want may adduce additional evidence if any. As such this appeal has got force and must succeed.”

Being aggrieved against this judgment of remand the instant appeal has been preferred.

The submission of the learned counsel for the appellant is that the lower appellate court has failed to take note of the powers and scope of provision contained in Order 41 Rule 23, 23-A and Rule 25. It has been submitted that as far as the instant order of remand is concerned, it cannot be said that the same has been passed in exercise of the powers under Order 41 Rule 23 since the suit was decided on merits and not on a preliminary issue. So also, Rule 25 also does not come into play since the lower appellate court did not find that there were any issues which were required to be framed nor framed it itself to come to the conclusion that certain evidence on the aforesaid points was lacking.

The submission is that the only provision under which the aforesaid remand could have been made was under Rule 23-A, however, in order for that aforesaid Rule to have any play, the essential ingredients ought to have been met and it was incumbent upon the lower appellate court to arrive at a finding that despite the pleadings and evidence on record the matter shall requires a remand as re-trial of the matter was necessary. It has further been submitted that though, throughout the judgment the lower appellate court has considered the material evidence available on record and has recoded that the same has not been considered which indicates that there was ample evidence available, however, it is not in a sound exercise of jurisdiction to remand a matter merely for taking a fresh look at the same evidence available.

The lower appellate cannot shirk from its responsibility as it is a court of both law and facts and both aspects are open and in case if the lower appellate court was of the opinion that the evidence has not been considered in the correct perspective, the lower appellate court being the final court of facts and law could have considered the same itself and given its finding, however, it was not a case where the remand was justified, especially, when there was complete absence of any finding that a re-trial is necessary.

The learned counsel for the appellant in support of his submission has relied upon a decision of the Apex Court in the case of P. Purushottam Reddy and Another Vs. Pratap Steel Ltd. and Others 2002 (2) SCC 686 and Hia Associates and Others Vs. Nakshatra Properties Pvt. Ltd. reported in 2018 (13) SCALE 582.

The Court has heard the learned counsel for the appellant and also perused the record.

In order to appreciate the submissions, it will be apposite to notice the relevant provisions regarding remand, its scope and its applicability. For ready reference Order 41 Rule 23, 23-A and Rule 25 are being reproduced hereinafter:-

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.

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.

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 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.

From the perusal of the aforesaid provisions, it would indicate that Order 41 Rule 23 comes into play only when the Trial Court decides the suit on a preliminary issue and the lower appellate court finds and reverses the finding on the aforesaid preliminary issue and under such circumstances remands the matter for a complete full trial. Apparently, in the present case at hand this is not the situation and to that extent the submission of learned counsel for the appellant stands good.

As far as Order 41 Rule 23-A is concerned, this is the general power of remand where the Appellate Court if it finds that the matter requires a re-trial or that in the ends of justice, certain issues and points which were relevant and subsisting in between the parties but have not been decided, under such circumstances, the Court has the power to remand. Nevertheless, in order to make a general remand under Rule 23-A it will be necessary for the lower appellate court to come to the conclusion that a re-trial is necessary without recording such a finding a general remand is not appreciated.

Order 41 Rule 25 deals with a situation where the Appellate Court finds that an issue involved between the parties has not been framed and it requires evidence on the same to that extent it has the power to frame the issue itself and remit the matter for the limited purpose or asking the Trial Court to collect the evidence on the same, give its finding and return the matter to the appellate court while the appeal remain in the dockets of the appellate court. In the present case, the aforesaid provision also has no applicability.

Thus, the only provision under which the judgment passed by the lower appellate court dated 05.02.1991 is tested on the parameters of Order 41 Rule 23-A C.P.C.

The relevant law on the aforesaid point as discussed by the Apex Court in the following judgments are being noticed.

The Apex Court in the case of Jegannathan Vs. Raju Sigamani and Another reported in 2012 (5) SCC 540 has held as under:-

5. Order 41 of the Code provides for appeals from original decrees. The Code empowers the appellate court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23-A and Order 41 Rule 25 which 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, with directions to readmit 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.

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.”

6. Order 41 Rule 23 is invocable by the appellate court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the appellate court thinks proper to remand the case for fresh disposal. While doing so, the appellate court may issue further direction for trial of certain issues.

7. Order 41 Rule 23-A has been inserted in the Code by Act 104 of 1976 w.e.f. 1-2-1977. According to Order 41 Rule 23-A of the Code, the appellate court may remand the suit to the trial court even though such suit has been disposed of on merits. It provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the appellate court considers that retrial is necessary, the appellate court may remand the suit to the trial court.

8. Insofar as Order 41 Rule 25 of the Code is concerned, the appellate court continues to be in seisin of the matter; it calls upon the trial court to record the finding on some issue or issues and send that finding to the appellate court. The power under Order 41 Rule 25 is invoked by the appellate court where it holds that the trial court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate court while remitting some issue or issues, may direct the trial court to take additional evidence on such issue(s).

Similarly, the Apex Court in the case of Zarif Ahmad (Dead) through legal representatives and Another Vs. Mohd. Farooq reported in 2015 (3) SCC 673 has held as under:-

13. No doubt, Section 107 CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 Order 41 CPC provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is not a healthy practice to remand a case to the trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, should a case be remanded e.g. when 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, but it is not so in the present case.

14. In P. Purushottam Reddy v. Pratap Steels Ltd. [(2002) 2 SCC 686] this Court has observed in para 11 as under: (SCC p. 695)

“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. 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.”

Therefore, the High Court rightly rejected the contention of the defendants on the above point.

Similarly, the Apex Court in the case of Municipal Corporation, Hyderabad Vs. Sunder Singh, reported in 2008 (8) SCC 485 has held as under:-

32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.

33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.

34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas [(2008) 11 SCC 753] .

From the principle as extracted above, if applied, to the present case at hand, it would indicate that the lower appellate court has shirked from its responsibility to act as the court of first appeal as envisaged under Section 96 C.P.C.. The Lower Appellate Court while considering with the submissions of the respective parties found that as far as the contentions are concerned, the lower court has ample material before it, however, it did not advert appropriately. This cannot be a reason for remand.

The lower appellate court has specifically noticed that the contention whether the plaintiff/appellant before this Court had a right to institute a suit had already been raised before the court below. There was evidence which was led by the parties and neither of the parties had raised the contention that certain issues required re-framing or that the parties were aware of the case they had to meet. In light of the issue already framed by the Trial Court, the parties were very well aware of the respective case and accordingly had led their oral as well as documentary evidence in respect thereto.

It is relying upon the aforesaid evidence that the Trial Court had recorded its finding, in case if the lower appellate court was not satisfied with the findings returned by the Trial Court then it always had the jurisdiction to re-appraise the same and record its own finding. All the issues and the grounds taken by the lower appellate court to justify its order of remand does not sound to reason nor is it in consonance with the principles laid down by this Court as well as by the Apex Court as noticed hereinabove.

In light thereof, this Court has no hesitation to hold that the lower appellate court has not exercised its jurisdiction in the correct perspective and the order of remand dated 05.02.1991 cannot sustain judicial scrutiny and is accordingly liable to be set aside.

For the reasons aforesaid, the impugned judgment dated 05.02.1991 is set aside. The matter bearing Civil Appeal No. 279 of 1994 shall stand restored before the lower appellate court who shall decide the appeal in accordance with law in light of the observations made in this judgment as well as on the basis of the material available on record before it.

Since the appeal is of the year 1991, accordingly, this Court finds it appropriate to make a direction that the lower appellate court shall make an earnest endevour to hear and finally decide the appeal within a period of sixmonths from the date a certified copy of this judgment is placed before it. Since the appellant is before this Court, accordingly, it is directed that the appellant shall appear before the lower appellate court on 26.02.2020. The lower appellate court shall also hear the respondents and seek their participation in the proceedings and shall ensure that the time-line granted by the Court is not violated. In case if any of the parties, misuses the same, the lower appellate court shall be justified in imposing heavy cost and such other orders as it may deem just, in order to ensure the compliance.

With the aforesaid, the appeal is allowed. There shall be no order as to costs.

[Jaspreet Singh, J.]

Order Date: 10.02.2020

Asheesh

 

 

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