Dinesh Pratap Singh vs Raghavendra Pratap Singh & others

This appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure assails the judgment and decree dated 30.10.2009, passed in Civil

Appeal No.47- A/2007.

Briefly stated, the facts are that the respondents/plaintiffs filed a Civil Suit No.141-A/2006 which was dismissed by the Civil Court on

28.04.2007. Aggrieved, they filed Civil Appeal No.47-A/2007 which was decided by the impugned judgment dated 30.10.2009. The said civil

suit was filed for declaration of title and permanent injunction. The trial Court framed seven issues including the issue No.6 regarding limitation in

filing the civil suit. The Issue No.6 was decided against the plaintiffs. The appellate Court remanded the matter by holding that during the pendency

of appeal, additional documents were filed by the appellant. In view of these documents, it is necessary to record evidence of Raghvendra Pratap

Singh & Munni Devi. It is also necessary to obtain report of handwriting expert relating to Ex.D/1 & D/4. Lastly, the commission was directed to

be appointed as per Order 26 Rule 9 CPC. This judgment is criticized by the present appellant by contending that the appellate Court has not set

aside the findings relating to Issue No.6. Once suit is held to be barred by time by the trial Court and such finding is not interfered with by the

appellate Court, the remand is impermissible and was a futile exercise on the part of appellate Court.

Mr. Akhil Singh submits that necessary ingredients for invoking power of remand flowing from various rules under Order 41 were not attracted

in the present case. Reliance is placed on order passed in MA No.1239/2001 [Devidas & another vs. Ganpat Rao & others], MA No.479/2011

[Vipin Kumar & others vs. Smt. Sarojani & another] and judgment of this Court reported in 2015 (1) JLJ 183 [Murari Lal Vs. Ram Kumar Ojha

and another]. Lastly, AIR 2008 SC 2579 [Municipal Corporation, Hyderabad Vs. Sunder Singh] is also relied upon.

Mr. A.K. Jain, learned counsel for the respondents submits that as appeal came to be held on the substantial questions of law.

No other point has been pressed by the parties.

I have heard the parties at length and perused the record.

This Court in its recent judgment passed in MA No.1963/2010 [Gooha & others vs. Smt. Uma Devi & others] held that in an appeal under

Order 43 Rule 1(u) existence of substantial questions of law is sufficient and it is not necessary to propose and frame substantial questions of law

while admitting the appeal.

In the present case, the substantial questions involved are: (i) whether the judgment of remand is in consonance with Order 41 Rules 23, 23-A

or 25 of CPC; (ii) whether the Court below was justified in remitting the matter back without dealing with the findings relating to limitation in filing

the civil suit.

Issue No.1

This is trite law that the appellate Court should be circumspect in remanding the matter and such power should not be exercised when the case

is not covered either by Rule 23 or 23-A of Order 41 CPC. The Apex Court deprecated the practice of remanding the cases in routine manner

without ensuring that necessary test for such remand flowing from Rule 23 or 23-A of Order 41 are satisfied. {See: P. Purushottam Reddy and

another vs. Pratap Steels Ltd. reported in 2002 (2) SCC 686 and Murari Lal vs. Ram Kumar Ojha & another reported in 2015 (1) JLJ 183}.

In N. Kamalan (Dead) & another vs. Ayyasamy & another reported in 2001 (7) SCC 503, it was held that provisions of Order 41 Rule 27

have not been engrafted in the Code so as to patch-up the weak points in the case and to fillup the omission in the Court of appeal. The said

provision does not authorize any lacunae or gaps in evidence to be filled-up. The authority and jurisdiction as conferred on to the appellate court to

let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. In Asha Narag vs. Dr. Ved Prakash Narang

reported in 1997 (11) SCC 667, it was poignantly held that it was not the case of the appellant that the trial Court had refused to examine her nor

is it her case that any new fact had come to her knowledge which she did not know at the time of trial, necessitating leading of additional evidence.

Similarly, it was not the case before the Court below that the documents to be produced or any witness to be examined as to enable the Court

below to pronounce the judgment.

In the present case also it was not the case of the plaintiffs that the trial Court has disallowed their request for recording the evidence of

Raghvendra Pratap Singh and Munni Devi. At the time of hearing of appeal before the Court below, the appellant therein contended that Munni

Devi and Raghvendra Pratap Singh could have been important witnesses. Nobody prevented the plaintiffs to bring said witnesses in the witness

box. The whole attempt of plaintiffs was to put the clock back and to filled-up the lacunae which is clearly out side the ambit and scope of relevant

provisions of the code of civil procedure for the purpose of remanding the matter. Apart from this, it was pointed out that Munni Devi had already

died during the pendency of this appeal.

As noticed above, the order of remand is not supported by any reason which can be said to be in consonance with the enabling provision,

namely, Rules 23, 23-A or 25 of Order 41. Thus, this issue is decided in favour of the appellant.

Issue No.2

I find substantial force in the argument of Mr. Akhil Singh in relation to this issue. The trial Court while deciding issue No.6, in no uncertain

terms, has held that the suit is barred by limitation. The appellate Court did not set aside the said finding. Thus, in absence of interference with this

finding, the remand would be a useless exercise. A suit which is barred by time cannot be restored for the purpose of recording evidence. For this

reason also, the impugned judgment cannot be upheld. The Issue No.2 is decided according.

In view of aforesaid discussion, the impugned judgment dated 30.10.2009 cannot be countenanced and the same is hereby set aside. The

matter is remitted back before the appellate Court to decide the appeal afresh on merits. Appeal is allowed. No Cost.