Amar Nath vs Brij Bushan

Shamsher Bahadur, J.—This is a defendant''s appeal from the appellate order of the Senior Subordinate Judge, Ludhiana, setting; aside "the judgment and decree of the trial Court" and remanding it for fresh decision after allowing opportunity to the parties to lead their evidence.

The suit of the plaintiff-respondent Brij Bhushan for possession of land measuring 15 bighas and 17 biswas was founded on a will which was executed by his grandfather Sita Ram on 26th of December, 1942. The suit was resisted by the appellant, who is an uncle (father''s brother) of the plaintiff, and it was asserted by him that the property left by Sita Ram should devolve equally to his three different sons or, as in the case of the plaintiff, the representative of Madhusudan Lal, one of the sons of Sita Ram. The land was held by Sita Ram in Pakistan and allotment had been made in lieu of it by the Managing Officer who had rejected the claim of the plaintiff on basis of the will.

Evidence on behalf of the plaintiff had been adduced on different hearings before the trial Court who by its order of the 28th of December, 1961, declined to entertain any secondary evidence with regard to the will which was reported to have been lost some time in 1958 It was claimed on behalf of the plaintiff that letters of administration had been obtained in respect of this will by the Court of the District Judge in Pakistan before partition. The case was next fixed for 19th of January, 1962, when the plaintiff made a statement that as he had been refused permission to lead secondary evidence of the will the suit which was based on it may be dismissed On the same day the defendant also made a statement to the effect that the suit may be dismissed and he be allowed costs. The order of the trial Court of 19th of January, 1962 is to this effect :

As per statement of the counsel for the parties and the Mukhtiar of the plaintiff, the suit of the plaintiff be dismissed with costs.

The memorandum of costs was prepared by the Subordinate Judge, Samrala, but no decree was framed dismissing the suit.

The plaintiff preferred an appeal to the Senior Subordinate Judge on the ground that the trial Judge had erroneously rejected the reception of secondary evidence. After discussion of the matter, the lower appellate Court decided in favour of the plaintiff and emanded the suit as mentioned aforesaid.

In appeal before this Court, it has been urged by Mr. Ram Rang, the learned counsel for the appellant, that no appeal could be entertained by the Senior Subordinate Judge as no decree had been prepared by the trial Judge and also on the ground that the order appealed from was based on the consent of the parties.

There can be no doubt that section 96 of the CPC contemplates appeal from decrees and under Order 41, rule 1, a memorandum of appeal "shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded". Thus, though there may be dispensation for the judgment of the trial Court, the decree must accompany the memorandum of appeal. It is common ground that no decree was ever prepared and it is also conceded that the memorandum of costs is not a substitute for the decree. It is, however, to be borne in mind that the defendant never raised this objection before the lower appellate Court which might have directed the trial Court to prepare a decree from which an appeal could be filed. Mr. Ram Rang has brought to my notice the decision of their Lordships of the Supreme Court in Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, , in which it was observed that;

The requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory; and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.

It was, observed in this case that though in cases where a decree has been drawn up by the trial Court the neglect of the appellant in filing a certified copy of it would not be condoned but the position would be substantially different if at the time when the appeal is presented a decree in fact has not been drawn up by the trial Court in which case if the memorandum of appeal has passed through the stage of admission through oversight of office, "then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him." Now, the office of the Senior Subordinate Judge never pointed out to the appellant that the memorandum was defective as it was unaccompanied by a copy of the decree nor was the defect ever brought to the notice of the Court by the defendant-appellant. It was only when the appeal was filed in this Court by Mr. Ram Rang that this ground was brought to the forefront in the memorandum. The only course left open at this stage is to leave it to the trial Judge to draw up a decree dismissing the suit and deal with it in accordance with law. It is not a matter on which it should now be held by this Court that the appeal preferred by the plaintiff-respondent being incompetent should have been dismissed by the Senior Subordinate Judge.

The second objection raised by Mr. Ram Rang is based on sub-section (3) of section 96 of the Code of Civil Procedure, under which "no appeal shall lie from a decree passed by the Court with the consent of parties". On a fair construction of the statements made before the trial Court, it cannot be said that the decree was passed with the consent of parties The plaintiff had adduced evidence on different hearings and an application for leading secondary evidence of the will on which the suit was founded having been rejected there was no further material for him to be brought on record. The plaintiff accordingly made a statement that the permission not having been accorded to him to lead secondary evidence his suit may be dismissed. As contended by Mr. Gandhi, the counsel for the respondent, it is possible to conclude from this that the plaintiff in absence of the evidence about the will had nothing further to urge and the fate of the suit on the recorded evidence stood settled, its dismissal being inevitable. The order of the Court passed on 28th of December, 1961, rejecting the application of the plaintiff, being interlocutory could have been assailed in appeal and the only remedy left for the plaintiff was to attack the order on merits in the appeal Court. I am, therefore, of the view that the appeal preferred before the Senior Subordinate Judge by the plaintiff is not hit by sub-section (3) of section 96 of the Code of Civil Procedure.

The remaining question relates to the merits of the remand order. Mr. Ram Rang has urged very strongly before me that the circumstances of the case did not warrant the assumption that the allegation made about the loss of the will is genuine. This is a matter on which the lower appellate Court has exercised its discretion in permitting the parties to lead further evidence and I am not inclined to take a different view in second appeal. I would not, therefore, interfere with the order of remand and would dismiss the appeal without any order as to costs. The trial judge, however, is directed to prepare a decree sheet, if so moved by an appropriate application by the parties concerned. The trial Judge would then decide the question in accordance with law.