Bidami vs Kishnaram and Others

Dr. Vineet Kothari, J.—The appellant/plaintiff, Bidami Wd/o late Sh. Shivkaran has preferred this misc. appeal assailing the validity of remand order dated 15.09.2015 passed by learned Additional District Judge, Merta, allowing the defendants'' Appeal No. 142/2015- Dhaglaram & Ors. v. Bidami & Ors. and remanding the case back to the trial court.

The learned trial court had decreed ex parte the suit filed by the plaintiff/appellant for cancellation of a registered sale-deed dated 30.11.2005, which was executed by the plaintiff, Bidami in favour of Kishnaram, who died on 26.07.2012. The operative portion of the trial court''s order dated 26.09.2013 decreeing the plaintiff''s suit is quoted for ready reference: -

The reasons assigned by the learned appellate court of Additional District Judge, Merta, for remanding the matter back to the learned trial court and setting aside the ex parte decree in favour of plaintiff, are also quoted herein below for ready reference: -

Aggrieve by the remand order passed by learned appellate court, the appellant/plaintiff has filed the present misc. appeal before this Court on 05.10.2015.

Learned counsel for the appellant/plaintiff, Mr. G.R. Punia, Sr. Advocate assisted by Mr. Rajesh Punia, urged that the appellate court has grossly erred in remanding the case back to the learned trial court while setting aside the decree in favour of plaintiff without firstly returning the findings on all the issues separately and making the remand order in a casual manner. He drew the attention of the Court towards the order-sheet entries dated 31.07.2013 and 24.08.2013 of the learned trial court and also produced certified copy of "Vakalatnama" filed on behalf of defendants, Dhagla Ram and 6 others, who are all the seven legal heirs of defendant, Sh. Kishnaram, which was filed on 21.08.2013 with the next date given on the top of the said "Vakalatnama" as 24.08.2013 and 20.09.2013.

Learned counsel for the appellant, Mr. G.R. Punia, Sr. Advocate, further submitted that if the Advocate appearing for the defendants (Legal heirs of original defendant, Kishnaram) chose not to cross-examine the plaintiff''s evidence, which was examined by the learned trial court on 24.08.2015, the next date after allowing the application under Order 22 Rule 4 CPC on 31.07.2013, the learned trial court cannot be said have committed any error in decreeing suit ex parte in favour of appellant/plaintiff and remand of the case cannot be made by the learned appellate court without deciding all the issues separately. He relied upon several case-laws in support of his contentions, the prime of them being P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., . The relevant para 10 of the said judgment is quoted herein below for ready reference: -

"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex-debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, , it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors 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 Order 20 Rule 3 or Order 11 Rule 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 circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided."

Besides the aforesaid judgments, learned counsel for the appellant/plaintiff relied upon various decisions of Hon''ble the Supreme Court and this Court in the following cases, almost to the same effect and urged that defendants had alternative remedy available to them to apply for setting aside of ex parte proceedings against them and having not done that, also and having failed to cross-examine the plaintiff''s evidence, they could not have asked for remand of the trial and the learned appellate court has, therefore, erred in doing so by the impugned order dated 15.09.2015. He, therefore, argued that the present misc. appeal deserves to be succeed.

"1. Madan Singh Vs. State of Rajasthan, .

M/s. Ganpati Construction Company Vs. Shri Dilmohan Raj Mathur and Others-->

Municipal Corporation, Hyderabad Vs. Sunder Singh, .

Having heard the learned counsel for the appellant/plaintiff, this Court is satisfied that the contentions raised by the learned counsel for the appellant/plaintiff, are without merit and the remand order does not deserve to be interfered with in the present appeal. The reasons are as follows.

The order sheet entries of the learned trial court dated 31.07.2013 and 24.08.2013 are quoted herein below for ready reference: -

On the previous occasion, on 31.07.2013, only application of the plaintiff under Order 22 Rule 4 CPC for taking the legal heirs of the purchaser, Kishnaram (defendant) under the impugned sale-deed, was allowed and the plaintiff was asked to file amended cause title on the next date for the plaintiff''s evidence as well as for filing of amended cause title the next date was fixed by the learned trial court as 24.08.2013. A close scrutiny of the order sheet dated 24.08.2013 would reveal that even though the Advocate of the legal representatives of the deceased defendant, Kishnaram viz. defendants No. 1/1 to 1/7, Dhaglaram & others, was present before the Court but taking only the affidavits of the plaintiff''s witnesses, the plaintiff Bidami herself and one Khiyaram, plaintiff''s evidence was closed on that very day without allowing any cross-examination of the witnesses by the defendants or their counsel. Nothing to the effect that defendants'' counsel was not willing to cross-examine the plaintiff''s evidence, is stated by the learned trial court in the said order sheet dated 24.08.2013 and the interpolations and over-writings of the lines in between the said order sheet entry dated 24.08.2013 also casts a serious doubt on the exact record of the facts, which happened on that date. These attendance of the Advocate for the defendants No. 1/1 to 1/7, appears to have been later on inserted by the learned trial court. Such abrupt closing of the plaintiff''s evidence taking only affidavits of them in his examination-in-chief, and concluding the trial of the suit on that basis, cannot be said to have met the ends of justice. Hurried trial can be buried justice and such ex parte decree specially when by which registered sale-deed is being quashed, without allowing the defendants to put up their case before the learned trial court, does fall within the mischief of Order 41 Rule 23 CPC and it is not the remand in a casual manner, as was held by the Courts including this Court and the Hon''ble Supreme Court in the judgments cited before this Court today.

This Court is fully satisfied that the learned trial court has unnecessarily proceeded in a hot haste manner and has concluded the trial while the stage of the case was only for filing of the amended cause title on 24.08.2013 and also for plaintiff''s evidence. A reasonable opportunity ought to have been given to the defendants or their counsel for cross-examination of the plaintiff''s evidence and further to lead their own evidence. In these circumstances, the remand order passed by the learned A.D.J., Merta, does not require any interference by this Court. There was no question of deciding all the issues separately while remanding the matter back to the learned trial court for the fresh trial.

Accordingly and in view of above, the present misc. appeal of the appellant/plaintiff is found to be bereft of any force and the same is hereby dismissed. No costs. A copy of this order be sent to the concerned parties and the courts below forthwith.