ORDER
Uma Nath Singh, J.
1. A judgment dated 6-9-2000 passed by learned 1st Additional District Judge, Morena, in Civil Appeal No. 70-A/96 setting aside the judgment and decree dated 10-9-97 passed by learned 1st Civil Judge, Class-I, Ambah and remanding the case to him for consideration afresh has been impugned in this Misc. Appeal.
2. The plaintiff/respondent Nos. 1 and 2 being the daughters of Kalyan Singh (since dead) and the plaintiff No. 3 being his adopted son, feared alienation of property by Kalyan Singh due to his deteriorating health. Hence they filed a suit for declaration and permanent injunction against Kalyan Singh, Smt. Awadh Kunwar (the respondent No. 4) and the present appellants. The suit was rejected on the ground that the plaintiff Nos. 1 and 2 are not in possession of the land in question. They are married daughters of Kalyan Singh. Similarly, the plaintiff No. ,3 was not found to have been adopted by Kalyan Singh.
3. Being aggrieved by rejection of the suit, the plaintiffs filed a civil appeal before learned Additional District Judge, Morena. During the pendency of appeal Kalyan Singh died and therefore, under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) the plaintiffs filed an application for amendment, pleading a change in circumstances. Learned Appellate Court decided the amendment application first without going into merits of the appeal; set aside the judgment and decree passed in the suit; and remanded the case for a fresh consideration.
4. The moot question that arises for adjudication is as to whether without considering the appeal on merits, the learned Appellate Court could have decided the amendment-application under Order 6 Rule 17 of the Code and remanded the entire case for afresh consideration. It is urged on behalf of the appellants that the Trial Court was incompetent to remand the case while disposing of the amendment-application without going into its merits. It is said that the learned Appellate Court in Para 6 of the impugned judgment has also mentioned that it was not necessary to consider the appeal on merits first and the Court while deciding the amendment-application remanded the matter to the Trial Court at that stage itself. In support of the proposition a reliance has been placed on a judgment of this Court reported in the case of Harbilas v. Kokabai (1982 JLJ 67). Para 7 being relevant portion of the judgment on reproduction reads as :–
“As regards the application for amendment the following observation made by this Court in the case of Khemchand Mulchand (supra) may be quoted :
‘What has been said in relation to an application under Order 41 Rule 27 (i) applied equally to the disposal of pleadings made at the appellate stage. The question whether a party should or should not be allowed to amend its pleadings at the appellate stage can not in its very nature be decided unless the appeal is first heard on merits.’
Thus, the amendment-application could also not be disposed of without examining the appeal on merits. That was not done by the Additional District Judge. Thus, he committed error of jurisdiction in the matter of disposal of the amendment- application also.”
That apart, this is also a case of the appellants that there was no change in circumstances with death of Kalyan Singh during pendency of the appeal and by the amendment- application, the appellants only wanted to challenge ‘Will’ in question which was already within their knowledge as an objection about that ‘Will’ had also been taken in the written statement. Further this ‘Will’ alone would have created an apprehension in the mind of the plaintiff. Another point which was sought to impress upon related to Order 41 Rules 23, 23-A and 25 of the Code. It is said that Rules 23 and 23-A of the Code are not applicable and only Rule 25 is relevant for that purpose. Under the said Rule, the Lower Appellate Court should have framed issues and sent them to the Trial Court for recording findings thereon after considering evidence; whereas, in the instant case, the entire decree and judgment has been set aside and the suit has been returned for a fresh and complete hearing. Reliance has been placed by learned Counsel for the appellants also on a judgment of Hon’ble the Apex Court reported in the case of P. Venkateshwarlu v. Motor & General Traders (AIR 1975 SC 1409). Para 2 of the judgment being the relevant one says that: “the remittal of whole case by Appellate Court where a finding on a specific point was required is illegal”. Another case which was referred to during the argument is reported as Harishankar v. Shrilal [1993 (II) MPWN (SN 144)]. The head note in the context of Order 41 Rule 25 of the Code says that:–
“remand is an exception and appeal should be decided on merits as a general rule.”
Yet another case of this Court on the point under reference is reported as Umrao Bai v. Sardarilal Khatri (AIR 1997 MP 62). The relevant portion of Para 9 of the judgment on reproduction reads as :–
“It is well established that powers of remand can not be exercised to fill up the lacuna of one or other party. They can be exercised for curing a radical defect in trial or hearing in the appeal resulting in miscarriage of justice.”
5. On the other hand, it is urged on behalf of the respondents that plaintiffs (respondents herein) being daughters and adopted son of Kalyan Singh were worried about his ill health and fading memory, therefore, with a view to safeguard their interest, they filed the suit in question and not because they were unaware of their status that married daughters could not have filed a suit for partition and claimed-interest in the property during life time of their father. It is also urged that disposal of amendment application, first in point of time would not mean that the appeal was not considered on merit. It is further urged that if the case was remanded, no prejudice would be caused to either of the parties, since they would get full opportunity to place the case afresh. Learned Counsel also refers to various decisions to substantiate his point. The first citation being Prem Prakash Johari v. Anand Kumar Halve [1990 (I) MPWN (SN 215)],- holds that :–
“no reason was assigned as to why someone will deprive his blood relation and choose somebody else as legatee who is of a different caste and community.”
This is to support that had the ‘Will’ in question been executed in a normal state of mind, the plaintiff Nos. 1 and 2 being daughters would not have been excluded from that. The second citation being Balmiki Singh v. Lalpari Devi (AIR 1981 Patna 161), refers to Order 41 Rule 23-A of the Code. It has been held that :–
“Order 41 Rule 23-A extends ambit of powers of remand of Appellate Court beyond what it was prior to amendment and thus, the Appellate Court can remand the suit for retrial.”
The third citation is the case of G. Gurumurthy v. K. Ayyappa (AIR 1974 SC 1702). Para 5 of the judgment says as :–
“We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance. We find the same view taken in Gopi Nath v. Sat Narain (AIR 1923 All 384), where it was held that:–
“Where an Appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order.”
It was also held that:–
“An order remanding issues under Rule 25 is not a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.
It is quite otherwise with an order of remand passed under Order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides.” A similar view was taken by the Nagpur High Court in Sultan Beg v. Chunilal (AIR 1918 Nag. 193). In Upendra Lal v. Jogesh Chandra, 32 Cal. W.N. 1233 = (AIR 1928 Cal 186) it was said :
“An order of remand made under Order 41, Rule 25 decides nothing. The Court, either the same or as differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous.”
We are, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O.S. 14 of 1913 there can be no question of Narasimham being entitled to any share in the properties purchased in Court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the Will executed by her in his favour.”
The fourth one is the case of Ragu Thilak D. John v. S. Rayappan [(2001) 2 SCC 472]. This judgment relates to Order 6 Rule 17 of the Code and lays down as:–
“After referring to the judgments in Charan Das v. Amir Khan, LJ. Leach & Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana Filial v. Parameshwaran Pillai, held :–
“3. The purpose and object of Order 6 Rule 17, CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment can not be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.”
“If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in Paras 8 (a) to 8 (f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.”
And the fifth reference is the case of Sampath Kumar v. Ayyakannu [(2002) 7 SCC 559], wherein it is held that :–
“pre-trial amendment of the plaint should normally be more liberally allowed than amendment sought after the commencement of the trial.”
6. Thus, on due consideration of rival submissions as well as from materials available on record, I am of the view that the Lower Appellate Court committed error in remanding the matter in toto without going into merits of the case, which appears to be contrary to settled principles of law. Secondly, the ‘Will’ in question had already been referred to in the plaint, the statements of witnesses and the written statement of the defendants. Therefore, it would not have been a new circumstance for allowing the amendment application on that ground. Thirdly, in view of Order 41 Rule 25 of the Code if at all there was any ground for remanding the case, the Appellate Court should have framed the issues and then remanded the case limited to those issues to the Trial Court for recording its findings after considering necessary evidence.
7. Under the circumstances, the impugned judgment is here by set aside and the Lower Appellate Court is directed to hear the appeal on merits and then decide the amendment application under Order 6 Rule 17 of the Code. Secondly, the Lower Appellate Court may direct the parties to adduce evidence in respect of issues in question for deciding the case at appellate stage.
8. Hence, the Misc. Appeal succeeds with aforesaid directions. Learned 1st Additional District Judge, Morena, shall issue notice to concerned parties for appearance on a date to be fixed by the Court.
9. Records of the case be sent forthwith to the Court of learned 1st Additional District Judge, Morena.