1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 43 OF 1994
1 Rameshkumar s/o Balubhai Sukhadia
Age 42 years, Occ. Prop. Kailash
Bhavan Hotel, Vazirabad,
Nanded
2 Tarunkumar s/o Balubhai Sukhadia,
Age 44 years, Occ. And R/o. As above ...Appellants
Versus
1 Kumwardevi w/o Shamlal Rathor,
(Since died through L.Rs.)
1-A Omprakash s/o Shamlal Rathor,
Age 50 years, Occ. Lecturer,
R/o. Near New Godavari Bridge,
Old Mondha, Nanded
1-B Gyanu s/o Shamlal Rathod,
Age 45 years, Occ. Service,
R/o. As above
2 Premchand s/o Bhagwandas Vekharia
Age 62 years, Occ. Business,
R/o. Ambika Temple, Vazirabad,
Nanded ...Respondents
.....
Mr. G.N. Chincholkar, advocate for the appellants
Mr. P.V. Mandlik, senior counsel, for respondent Nos. 1-A and 1-B
.....
CORAM: S. S. SHINDE, J.
DATE OF RESERVATION
OF JUDGMENT :15.10.2010
DATE OF PRONOUNCEMENT
OF JUDGMENT :27.10.2010
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ORAL JUDGMENT :-
1 This appeal From Order is filed challenging the judgment and
order dated 1.9.1993 passed by the learned IIIrd Additional District
Judge, Nanded in Regular Civil Appeal No. 276 of 1992. The
appellants herein are the original defendant Nos. 1 and 2 in Regular
civil suit No. 222 of 1989 and the respondent No. 1 and 2 in Regular
civil Appeal No. 276 of 1992. The respondent No.1-A and 1-B herein
are the legal heirs of original plaintiff in R.C.S. No. 222 of 1989 and
appellant in R.C.A. No. 276 of 1992. The respondent No. 2 herein is
the original defendant and respondent in the proceedings before the
lower court.
2 The plaintiff filed the suit against defendants for declaration that
the sale deed number No. 3541 dated 24.8.1979 executed by
defendant No.3 in favour of the defendant Nos. 1 and 2 regarding suit
property is null and void and in effective and not binding on the
plaintiff. It is the case of plaintiff that the land Sr. No.50 admeasuring
26 acres 4 gunthas situated at village Asadullabag was purchased by
plaintiff and other three persons by registered sale deed dated
21.8.1967 from one Abdul Samad Khan. After purchase of land at Sr
No.50 the name of plaintiff and other purchasers were recorded in
revenue record of the S. No.50. It is contended that the defendant No.
3 has no concern with the suit land S. No.50 and plaintiff came to
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know that the defendant No.3 has executed sale deed in favour of
defendant No.1 and 2 regarding 12 paise share in the suit land. The
plaintiff came to know the execution of the sale deed by the defendant
No.3 in the year 1989, hence she applied for copy of the sale deed
and on getting the said copy, it was revealed to her that defendant No.
3 without having any right and title of ownership, has executed false
and factitious sale deed in favour of defendant Nos. 1 and 2. It is
further revealed from the said sale deed that so called firm purchased
S.No.50 on 21.8.1967. It is contended that the partners Nanded
Development Syndicate were never possessors of the land Sr. No.50,
the provisions of Partnership Act are non convertible to the immovable
property. The contention taken by the defendant No.3 in the sale deed
dated 24.8.1979 that he has got 12 paise share in the suit land, is
totally misconceived and contrary to the provisions of Partnership Act.
It is contended that the plaintiff and other three purchasers are the joint
owners of the suit land and their ownership is not divested by any
instrument to defendant No.3. It is contended that defendant Nos. 1
and 2 have unauthorizedly occupied the land admeasuring 1 acres 20
gunthas out of S. No.50 and they have made out plots and further sold
some plots hence plaintiff also claimed relief of perpetual injunction
restraining the defendants from alienating the suit land and ultimately
plaintiff prayed that the plaintiff is owner of the suit land and defendant
Nos. 1 and 2 have no right or interest in the same by virtue of sale
deed executed by defendant Nos. 3, and prayed to decree the suit.
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3 The defendant No.3 was duly served. However, he failed to file
written statement hence, the suit is proceeded exparte against him.
The defendant Nos. 1 and 2 filed their written statement at Exh.21.
The defendant Nos. 1 and 2 have denied all the contentions of plaintiff
in toto. It is contended that the entire suit of plaintiff is false and
baseless. It is contended that at the instigation of defendant No.3,
plaintiff has filed the suit against defendants. It is also contented that
defendant No.3 had filed suit against defendant nos. 1 and 2 bearing
suit No. 495 of 1985 for declaration that the sale transaction is null and
void, however, that suit was ultimately dismissed. It is contended that
the plaintiff is aware of the transaction since beginning in between
defendant No.3 and defendant No. 1 and 2. Further the revenue
authorities have given effect of the sale deed dated 24.8.1979 in the
revenue record and at that time the plaintiff challenged those entries
immediately. Hence, the plaintiff knew from the very beginning
regarding the sale deed dated 24.8.1979 and the suit therefore, is
beyond limitation. It is denied that the plaintiff came to know the fact of
sale deed in the month of February, 1989. It is contended that M/s.
Nanded Development Syndicate is a partnership firm and the firm is
owner of land S. No.50. It is contended that when the firm was
dissolved at that time defendant No.3 got the share in the suit land to
the extent of 12 paise share and accordingly defendant No.3 was
having title in the suit land and he was competent to sale the same to
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the defendant Nos. 1 and 2. It is contended that the plaintiff and other
purchasers are not joint owner of S. No.50. The plaintiff and other
purchasers have ceased their right in the suit land after formation of
registered partnership M/s. Nanded Development Syndicate. It is
further contended that valuation made by the plaintiff for jurisdiction
and court fees purpose is totally wrong. The value of the suit land is
about Rs.1,50,000/- and the plaintiff should have valued the suit
accordingly. It is contended that the plaintiff has not properly valued
the suit and paid court fees, It is contended that the defendant No.3
was owner of the suit land by virtue of the partnership deed and
defendant No.1 and 2 are the rightful owners of the suit land by virtue
of sale deed dated 24.8.1979. The plaintiff has no right and interest in
the suit land and ultimately prayed for dismissal of suit. On the basis of
the rival pleadings the trial court framed necessary issues as per Exh.
34 and after recording the evidence dismissed the suit.
4 Being aggrieved by the judgment and decree dated 16.7.1992 in
Regular Civil Suit No. 222 of 1989, passed by the learned Joint
C.J.S.D. Nanded, the respondent No.1 herein filed Regular Civil
Appeal No. 276 of 1992. The IIIrd Additional District Judge, Nanded
by his judgment and oder dated 1.9.1993 set aide the judgment and
decree of the trial court and the matter was remanded back to the trial
court thereby directing to frame some additional issues which formed
part of the order of the trial court. The Trial court was further granted
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liberty to adduce any more evidence if the party desires to do so. This
judgment and order of the lower appellate court dated 1.9.1993 is
under challenge in this Appeal From Order.
5 Learned counsel appearing for the appellant submitted that well
reasoned judgment and decree of the trial court has been set aside by
the lower appellate court without formulating any point for its
consideration and determination and without discussing the evidence
on record, the lower appellate Court remanded the matter back to the
trial court granting liberty to frame additional issues. According to the
counsel for the appellants, unless the lower appellate court framed the
necessary issues for its determination the remand was impermissible.
The appellate court has failed in its duties to decide the issue involved
by itself and remanded the matter back to the trial court. It is further
submitted that the mandate of Order 41 Rule 23, 23-A, 25 and 33 has
not been followed by the lower appellate court while remanding the
matter back to the trial court. It is further submitted that the trial court
framed the number of issues and arrived at a definite conclusion.
However, the lower appellate court has not considered all aspects of
the matter and by cryptic discussion, remanded the matter back to the
trial court. The learned counsel submitted that there is no discussion
whether the suit claim was within limitation or not? There is no
discussion about issue 1-A, which was framed by the trial court. Lower
appellate court has also not considered that the trial court in para 26 of
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its judgment had discussed that the plaintiff had raised objection
before the Tahsildar when the defendant Nos. 1 and 2 have submitted
an application on 6.10.1982 to give effect to mutation in their favour of
12 paise share. The lower appellate court has also not considered that
the Tahsildar passed an order on 18.1.1985 and the trial court had
called for the proceeding before the Tahsildar for its perusal. The court
has not considered the evidence brought on record that defendant No.
3 by way of sale deed bearing 3541 dated 24.8.1979 transfered the
suit property in favour of the defendant Nos. 1 and 2. Learned
counsel further submitted that the trial court has considered the effect
of sale deed executed in 1982 and also point of limitation. It is further
submitted that R.C.S. No. 495 of 1985 for declaration that the sale
deed is null and void against the defendant No. 1 and 2 was filed by
the defendant No.3 however, the said suit was dismissed. The lower
appellate court has not considered the said aspect which was formed
part of the judgment of the trial court. According to the leaned
counsel, the order of the lower appellate court remanding the matter to
the trial court without framing proper points for determination and
without taking into consideration the documents and evidence on
record, is impermissible in law. Learned counsel invited my attention to
the various judgments of the Hon’ble Apex Court to contend that the
remand order should not be passed so casually without properly
appreciating the issues and without considering the evidence and
documents on record. It is further submitted that the lower appellate
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court has not considered the fact that the plaintiff retired from the firm
and she accepted the amount of Rs.1,60,000/- by cheque from M/s.
Nanded Development Syndicate Firm and other three partners have
also retired and the partnership came to be extinguished on 3.5.1982
and therefore, the plaintiffs ceased to be the co-owners of the
property. It is further argued that the impugned judgment and order is
in contravention of the provisions of Order 41 Rule 23, 23A, 25 and 33
of C.P.C. In support of his contention, counsel invited my attention to
the report judgments of the Supreme Court in the cases of State of
T.N. Vs. S. Kumaraswamin and others, reported in AIR 1977 SC
2026, Ashwinkumar K. Patel Vs Upendra J. Patel and Ors.
reported in AIR 1999 SC 1125, P. Purushottam Reddy and Anr.
Vs. M/s. Pratap Steels Ltd. reported in AIR 2002 SC 771, Municipal
Corporation, Hyderabad Vs. Sunder Singh, reported in 2008 (8)
SCC 485, Godrej Rustom Karmani Vs. Hari Alidas Thadani and
Ors. reported in 1990 (3) Bom. C.R. 587 and J. Arun Keshavrao
Mone (Mane) and Ors. Vs. Ramesh Balvant Baxi and Anr.
reported in (2006) (0) BCI 19
Relying on the aforesaid judgments, counsel for the appellant
would submit that the this Appeal From Order deserves to be allowed.
6 On the other hand, learned senior counsel appearing for the
concerned respondents submitted that it is not necessary for the lower
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appellate court to formulate the points while remanding the matter
back to the trial court. According to him, necessary additional two
issues have been framed by the appellate court and based on those
issues, the matter was remanded back. He further submitted that there
are various pronouncements of this Court, which have taken view that
it is not necessary for the lower appellate court to formulate the points.
Learned senior counsel further submitted that the appellants herein
have no concerned with the suit land and therefore, this Appeal From
Order deserves to be dismissed. Counsel in support of his
submissions heavily relied upon the reasons recorded by the lower
appellate court while remanding the matter back to the trial court for
fresh consideration.
7 I have given due consideration to the rival submissions of the
counsel appearing for the parties. At the outset, it is necessary to take
into consideration the provisions, under which this Appeal From Order
is filed in this Court and to what extent this Court can interfere in the
impugned judgment and order passed by the lower appellate Court.
In the case of Narayanan Vs. Kumaran and others, reported
in (2004) 4 SCC 26, the Hon’ble Supreme court has considered the
provisions of Order 43 Rule 1(u) i.e. appeal from order under the
provisions of section 104 of C.P.C. Order 43 Rule 1(u) reads thus:-
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“43. (1) Appeals from Orders. – An appeal shall lie from
the following orders under the provisions of Section 104 namely-
(a) to (t) * * *
(u) an order under Rule 23 or Rue 23-A of Order 41
remanding a case, where an appeal would lie from the decree of
the appellate court.”
In para 17 of the said judgment it is held thus:-
“17. It is obvious from the above rule that an appeal will
lie from an order of remand only in those cases in which an
appeal would lie against the decree if the appellate court instead
of making an order of remand had passed a decree on the
strength of the adjudication on which the order of remand was
passed. The test is whether in the circumstances an appeal
would lie if the order of remand were to be treated as a decree
and not a mere order. In these circumstances, it is quite safe to
adopt that appeal under Order 43 Rule 1 clause (u) should be
heard only on the ground enumerated in Section 100. We
therefore, accept the contention of Mr. T.L.V. Iyer and hold that
the appellant under an appeal under Order 43 Rule 1 clause (u)
is not entitled to agitate questions of facts. We, therefore, hold
that in an appeal against an order of remand under this clause,
the High Court can and should confine itself to such facts,
conclusions and decisions which have a bearing on the order of
remand and cannot canvass all the findings of facts arrived at
by the lower appellate Court.”
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Therefore, in the present case, this Appeal from order is
required to be heard on the only grounds enumerated in Section 100
of C.P.C. In short, unless there is substantial questions of law falls for
consideration of this court, this court is not suppose to entertain this
appeal from order. This Court has to confine itself such facts,
conclusions and decisions which have bearing on the order of remand
and cannot canvass all the findings of the facts arrived at by the lower
appellate court.
8 On perusal of the judgment and order of the lower appellate
court, I find that the lower appellate court has not formulated any point
for its determination. From para 1 to 5 the court has narrated the facts
and arguments of the advocates appearing for the respective parties.
The court has discussed the issues involved in the matter. From para
6 to 9 of the impugned judgment and whatever has been discussed in
para 6 to 9 has been briefly summarized and the conclusions are
noted in para 10 of the judgment.
On perusal of para 6 of the judgment, it appears that the lower
appellate court has recorded the submissions of the counsel for
original plaintiff that entire oral and documentary evidence recorded by
the trial court on behalf of the defendant Nos. 1 and 2 is against the
pleading made by defendant Nos. 1 and 2 in their written statement.
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In the same para, the court has observed that further even though
there are pleading and evidence, an issue on the basis of Section 14
of the Partnership Act, is required to be framed and decided by the trial
court. All these legal aspects have not been considered by the trial
court. (emphasis supplied)
In para 7 of the impugned judgment, the court has considered
the argument of the advocate for respondent Nos. 1 and 2 i.e. the
appellants herein. In para 8, the Court has observed that from scrutiny
of the written statement, it appears that defendants have denied all
allegations by the plaintiff in their written statement. Further in para 7
of the written statements, defendants also submitted that the said firm
was rightful owner and possessor of the said land for all intent and
purpose and this fact is borne out by substantial documentary proof. It
is further pleaded in para 8 of the written statement that as a matter of
fact after formation of registered partnership firm M/s. Nanded
Development Syndicate, the plaintiff and her co-purchasers have
ceased their right and interest which accrued to them by registered
sale deed in the year 1967. The court further observed that from the
scrutiny of written statement, it appears that defendants have not
made out specific case that partnership firm was formed, what was
agreement between the partners, what was the property thrown into
the common stock at the business of partnership, what was the nature
of the property and how it was acquired, what was the object and
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intention to acquire the property. All these facts regarding the
partnership, as alleged by the defendants, have not been pleaded in
their written statement. However, from the evidence on record it
appears that the defendants Nos. 1 and 2 want to show that there was
partnership deed in between partners and plaintiffs were the partners
of the firm. The property which was purchased in the name of the
plaintiff and other co-owners was brought in common stock of the firm.
Further how this property was acquired by the firm, subsequent
transaction of the firm and the business of the firm and accordingly
adduced the evidence. It appears that the defendants have not
pleaded the facts in their written statements which was brought on
record by their evidence. Further, when the plaintiff has taken
objection that entire evidence is being adduced without pleading by
defendants, the trial court has made it clear that at the time of
judgment, the decision of this aspect will be given. It appears that
while giving judgment lower court has not observed anything regarding
the admissibility of the evidence. The lower appellate court reached to
the conclusion that the defendants have brought evidence without
pleading, objection was raised before the trial court and it was
necessary by the trial court to decide that aspect. When the plaintiff
has raised legal issue before the court that without pleading,
inadmissible evidence is being admitted in the evidence then it was
necessary for the lower court to scrutinize the objection raised by the
plaintiff. However, it appears that the lower court has not given any
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thought regrading the admissibility of the evidence while delivering the
judgment.
In para 9, the court further held that it appears from written
statement that they have not made any specific case. However, on the
basis of the stand taken in their written statement, whether the
evidence adduced by them is admissible or not is required to be seen.
If entire evidence is held inadmissible without pleading then the
question of framing of other issue on the basis of Section 14 of the
Partnership Act does not arise. However, if the evidence is held to be
admissible on the basis of existing pleading then the issue on the
basis of Section 14 of the Partnership Act is required to be framed and
decided.
9 After hearing the parties and after discussion in para 6 to 9, in
para 10 the Court held thus:-
“10 I find that the lower court while giving the decision
of the suit, has not touched the point of admissibility of the
evidence adduced by defendants Nos 1 and 2, when plaintiff
has raised objection that evidence of defendant Nos. 1 and 2 is
without pleading it was necessary and the lower court to decide
this point at the time of decision of the suit. The lower court was
required to see whether the evidence adduced by the defendant
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15Nos. 1 and 2 is admissible or not and if it is admissible it was
necessary if the lower court to frame issue as the case of
defendants entirely rests on Section 14 of the Partnership Act.
All these legal aspects have been apparently overlooked and
not decided by the lower court, I find that the entire case is
required to be remanded to the lower court to decide these two
aspects which are legal. I find that the lower court has failed to
determine the material issue that whether evidence adduced by
the defendants Nos. 1 and 2 is admissible without pleadings.
When apparently it appears that there are no pleadings, raised
by the defendants Nos. 1 and 2 the judgment of the lower court
is vitiated by the admission of inadmissible evidence. Under
these circumstances, it appears to me that it will be proper to
remand the case to the lower court so that the lower court can
determine the issue whether the evidence adduced by the
defendant Nos. 1 and 2 is admissible without pleadings and if it
is admissible, it is necessary that the lower court should frame
the issue according to provisions of Section 14 of the
partnership Act.” (Emphasis supplied).
10 The lower appellate court on the aforesaid facts and findings
has passed the following order;-
I) The appeal is allowed. ::: Downloaded on - 09/06/2013 16:34:57 ::: 16 II) The judgment and decree of the lower court is set aside. III) The suit is remanded to the lower court. IV) The lower court is directed to frame the following
additional issues and decide the same according to law;
ig i) Whether the evidence adduced by the
defendants Nos. 1 and 2 is inadmissible for
want of pleadings?
ii) Whether the suit property was the property of
firm as alleged by the defendants Nos. 1 and
2?
V) Parties are at liberty to adduce any more evidence if they
want.
VI) In the facts and circumstances there is no order as to
costs.
(Emphasis supplied)
11 The trial court while entertaining the suit filed by the plaintiff
framed as many as seven issues for its determination. The said issues
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are as under:-
i) Whether the suit in the present form is tenable?
i-A) Whether the plaintiff alongwith three others is the
co-owner of the suit field Survey No.50 of
Asadullabad?
ii)
Whether a valid title in respect of the suit portion of
the land has been passed over by the defendant
No.3 in favour of the defendant Nos. 1 and 2?
iiii) Whether the plaintiff is estopped from claiming the
relief?
iv) Whether the defendant No. 1 and 2 are in lawful
possession of the suit land as the owners?
v) Whether the suit claim is within limitation?
vi) Whether the suit for the purpose of court fee and
jurisdiction properly valued?
vii) What order and decree?
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After considering the issue Nos.1 to 7, the trial court dismissed
the suit with costs and decree was drawn accordingly. From perusal of
the judgment of the trial court, it appears that the trial court has dealt
with the issue regarding tenability of the suit. The issue of the co-
ownership, valid title in respect of the property, principle of estoppal,
lawful possession of the parties on the suit land, whether the suit claim
is within limitation, whether the suit for the purpose of court fees and
whether the jurisdiction is properly valued etc.
On careful perusal of the judgment and order of the lower
appellate court, it clearly reveals that the lower appellate court has not
formulated any point for its determination, has not discussed the
important points which were addressed before the trial court, has not
taken recourse to any evidence or documents while reaching to the
conclusion and while setting aside the impugned judgment and order
of the trial court. The matter is remanded back to the trial court and
parties are given liberty to adduce any more evidence, if they want.
(Emphasis supplied).
12 In the light of the above, the following substantial questions of
law would fall for consideration of this court;
i) Whether the lower appellate court while setting aside the
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19judgment and decree of the trial court and remanding the
matter back to the trial court, has followed the scope of
Order 41 Rule 23, 23-A and 25 of the C.P.C. in the light
of various pronouncements of the Hon’ble Supreme court
taking a view that remand order cannot be passed as a
routine affairs but only in exceptional cases
ii) Whether the lower appellate court failed to follow the
command of Order 41 Rule 23 and 23A that the remand
should not be made as routine and the appellate court
itself should decide the appeal one way or the other?
iii) Whether the lower appellate court has failed in its duties to
formulate the points, adjudicate the issues, consider the
rival submissions and take decision one way or the other
by itself without remanding the matter to trial court as
provided under sub-Sec. 2 of Section 107 of the C.P.C.?
iv) Whether the lower appellate court has set aside the well
reasoned judgment and decree of the trial court without
formulating the points and addressing all issues which felt
for consideration of the trial Court?
At this juncture, it would be appropriate to refer the provisions of
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Order 41 Rule 23, 23-A and 25 of C.P.C., which reads thus:-
ORDER XLI
APPEALS FROM ORIGINAL DECREES
“1 to 22 * * *
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 inappeal, the Appellate Court may, if it thinks fit, by order remand
the case, and may further direct what issue or issues shall betried 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 itsoriginal 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 all just exceptions, be evidence during
the trial after remand.
23A Remand in other cases- Whether the Court from whose
decree an appeal is preferred has disposed of the caseotherwise 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.
24 * * *
25 Where Appellate court may frame issues and refer
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21them for trial to Court whose decree appealed from.- Where
the Court from whose decree the appeal is preferred has omittedto frame or try any issue, or to determine any question of facts,
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 Courtfrom 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 itsfindings thereon and the reasons therefor [within such time as
may be fixed by the Appellate Court or extended by it from timeto time]
If the impugned judgment is perused it clearly emerges that the
lower appellate court has set aside the judgment and order of the trial
court in its entirety and not only on the preliminary points. The lower
appellate court has remanded the matter back to the trial court after
setting aside the judgment and decree of the trial court. Therefore, the
case in hand would fall under Section 23A of order 41 of C.P.C.
However, Rule 23A provides same powers to the appellate court as it
has under Rule 23. In the instant case, it is true that the lower
appellate court has formulated two additional issues and remanded
the matter back to the trial court for fresh consideration, however, in
entire discussion in para 6 to 10, the lower appellate court has not
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taken recourse to any evidence or documents as referred by the trial
court. The lower appellate court has also not considered all issues feltl
for consideration before the trial court. The important issues like
whether the suit was within limitation, whether the trial court has
considered the sale deed and rights of the parties, revenue entries and
all other aspects which have been dealt with by the trial Court. Rule
23A of Order 41 contemplates appeal against the final judgment and
order of the trial court. When the appeal is filed challenging the
judgment and decree of the trial court, then it is the duty of the
appellate court to take into consideration the entire important points,
evidence and documents into account and then pass the necessary
order in the light of the provisions of Section 107 of C.P.C.. The
appellate court itself is competent to formulate the points, to address
the legal issue involved in the matter and also appreciate the
evidentiary value of the documents, the remand of the matter to the
trial Court was not warranted. The remand order causes delay in the
proceeding and also causes prejudice to the parties, as held by the
Hon’ble Supreme Court. From entire discussion in para 6 to 10 and
more particularly the conclusions reached in para 10 of the lower
appellate court, are too cryptic to set aside the entire judgment and
decree of the trial court. It appears that the lower appellate court has
considered the only effect of Section 14 of the Partnership Act and
contents of the Partnership deed and the written statement filed by the
defendants and set aside the well reasoned judgment and decree
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passed by the trial court. That apart, the trial court has given liberty to
the parties to adduce any more evidence, if they want. If the lower
appellate court was convinced that only two additional issues are
required to be framed and addressed by the trial court in that case
granting liberty to the parties to adduce any more evidence if they
want, is totally unwarranted.
13 While coming to another conclusion reached by the appellate
court that when there is no pleading, evidence against pleading is in
admissible. The lower appellate court has observed that even though
there are pleadings and evidence a issue on the basis of Section 14 of
the Partnership Act, is required to be framed and decided by the lower
Court. All these legal aspects have not been considered by the lower
Court.
The lower appellate court itself could have considered these
legal aspects. It was not that the lower appellate court was not
empowered to adjudicate these legal points. It was not necessary to
remand the matter back to the trial court on the legal aspects. Since
the appeal is a continuous proceeding of the suit, it was open for the
lower appellate court to exercise its jurisdiction and address the legal
issues and all other issues felt for its consideration by framing
necessary points and then decide the matter by one way or the other.
The lower appellate court can do so under sub section (2) of Section
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107 of C.P.C. However, the lower appellate court has failed in its
duties to exercise its jurisdiction vested in it and rather chosen easier
way to remand the matter back to the trial court.
14 While discussing the substantial questions of law 1, 2 and 3 it is
already observed that the lower appellate court has not addressed the
legal issues like whether the suit is filed within limitation, the issue of
co-ownership and whether the title in respect of the suit portion of the
land has been passed over in favour of original defendant Nos.1 and 2
i.e. appellants and whether the plaintiffs have established their claims
whether the appellants are in lawful possession of the property, all
these contentions are elaborately dealt with by the trial court.
15 In the above background it would be relevant at this juncture to
refer to some of the important judgment of the Hon’ble Supreme Court
on interpretation of Order 41 Rule 23, 23A and 25 of C.P.C. In the
case of State of T.N. (supra) the Hon’ble Supreme court held that it is
not permissible for the appellate court to brush aside the findings of
trial court without giving any reason, without any appreciation of
documents and without any appreciation of contentions of parties.
Yet in another case Ashwinkumar K. Patel (supra), the
Hon’ble Supreme Court in para 7 held thus:-
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“7. In our view, the High court should not ordinarily remand a
case under Order 41, Rule 23 of C.P.C. to the lower Courtmerely because it considered that the reasoning of the lower
court in some respects was wrong. Such remand orders lead to
unnecessary delays and cause prejudice to the parties to the
case. When the material was available before the High court, itshould have itself decided the appeal one way or other. It could
have considered the various aspects of the case mentioned in
the order of the trial Court and considered whether the order ofthe trial Court ought to be confirmed or reversed or modified. It
could have easily considered the documents and affidavits anddecided about the prime facie case on the material available. In
matters involving agreements of 1980 (and 1996) on the onehand and an agreement of 1991 on the other, as in this case,
such remand orders would lead to further delay and uncertainty.
We are, therefore, of the view that the remand by the HighCourt was not necessary.”
Yet in another case P. Purushottam Reddy and another
(supra), the Hon’ble Supreme Court in para 10 held thus:-
“10. ……. It is only in exceptional cases the Court may
exercise the power of remand dehors the Rules 23 and 23A. To
wit, the superior Court, if it finds that the judgment under appeal
has not disposed of the case satisfactorily in the manner
required by O. 20, R. 3 or O. 41, R. 31 of the CPC and hence it
is no judgment in the eye of law, it may set aside the same and
send the matter back for rewriting the judgment so as to protect
valuable rights of the parties. An Appellate Court should be::: Downloaded on – 09/06/2013 16:34:57 :::
26circumspect in ordering a remand when the case is not covered
either by R. 23 or R. 23A or R. 25 of the CPC. An unwarrantedorder of remand gives the litigation an undeserved lease of life
and therefore must be avoided.”
Yet in another case of Municipal Corporation, Hyderabad vs
Sunder Singh (supra), the Hon’ble Supreme Court in para 11 held
thus:-
“11. It is now well settled that before invoking the said
provisions, the conditions precedent laid down therein must besatisfied. It is further well settled that the court should loathe to
exercise its power in terms of Order XLI Rule 23 of the Code of
Civil Procedure and an order of remand should not be passedroutinely. 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 findings of its own. The appellate courtcannot shirk its duties.”
16 Therefore, taking into consideration the provisions of Civil
Procedure Code, the powers of the lower appellate court and
discussion made herein above, in my opinion, the remand order by the
lower appellate court is not proper. The lower appellate court, as
stated herein above, has not formulated any points for its
consideration nor it has taken into consideration the legal aspects
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27
involved in the mater and without any basis has reached to erroneous
conclusion to set aside the well reasoned judgment and order of the
trial court.
However, since this Court has to consider this appeal From
Order only on the grounds enumerated in section 100 of C.P.C. and
should confine itself to such facts, conclusion and decision which have
bearing on the order of remand and cannot canvass all points of facts
arrived at by the lower appellate court, it is not possible for this court to
enter into appreciation or reappreciation of evidence. The Hon’ble
Supreme Court in the case of Narayanan Vs. Kumaran and others
(supra) held that the court cannot go into excruciating details of facts
and appreciate evidence while entertaining the Appeal from Order
under the provisions of Order 43 Rule 1(u) of C.P.C.
17 In the light of the discussions made in the foregoing paragraphs,
the impugned judgment and order dated 1.9.1993 passed by the IIIrd
Additonal District Judge, Nanded in Regular Civil Appeal No. 276 of
1992 is quashed and set aside. The Regular Civil Appeal No. 276 of
1992 is restored to its original file. The lower appellate court is directed
to formulate the necessary points for its determination/consideration
and adjudicate all those points and decide the same by giving full
opportunity to the parties concerned. The lower appellate court is
directed to take into consideration the necessary evidence,
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documents and legal provisions. The parties are at liberty to agitate
relevant issues involved in the matter and the lower appellate court
can decide the matter itself. With these observations, this Appeal
From order is allowed to the above extent and disposed of.
18 Civil application, if any, stands disposed of.
19 Record and proceeding of this case be sent back forthwith to the
concerned Court.
*****
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