Hawa Singh vs Lal Singh

N.K. Sodhi, J.—This order will dispose of two second appeals from orders 23 of 1996 and 22 of 1997 in which a common question of law arises.

S.A.O. No. 23 of 1996

Chhota defendant 2 (now deceased) was the owner in possession of agricultural land measuring 13 kanals 5 marlas and a house as described in the head note of the plaint in village Kalkha Tehsil Panipat. He had two sons Banwari and Lal Singh. Hawa Singh defendant 1 is the son of Banwari. Lal Singh filed a suit for declaration to the effect that the agricultural land and the house was given to him and Banwari to the extent of 1/2 share each in a family settlement in the year 1971. It is averred that portion of the house marked ABCD shown in the map attached to the plaint also fell to his share. It is further averred that a writing in the presence or the respectables of the village was also executed at the time of the family settlement. Chhota deceased suffered a decree on 12.4.1982 in favour of Hawa Singh in civil suit 228 of 1982. It is pleaded that this collusive decree was obtained with a view to harm the interest of the plaintiff. Lal Singh also challenged this decree as null and void and not binding on him. It has also been alleged that Chhota was not the owner of the property at the time of the decree and that the decree which involved property worth lacs of rupees required compulsory registration. The suit was filed against Hawa Singh (defendant 1) and Chhota defendant 2. During the pendency of the suit Chhota expired and his legal representatives were brought on the record.

The suit was contested by the defendants and it is pleaded that the decree passed in civil suit 228 of 1982 was legal and binding upon the parties. The family settlement as alleged by the plaintiff was denied. It was also pleaded that Chhota executed a registered will dated 23.1.1981 in favour of Hawa Singh on the basis of which the latter has become the owner in possession of the property in dispute. On the pleadings of the parties, the trial court framed the following issues :

Whether the plaintiff is the owner in possession of 1/2 share of the suit land on the basis of family settlement as alleged in paras 1 and 2 of the plaint ? OPP

Whether the decree dated 12.4.1982 in civil suit 228 of 1982 is null, void and is not binding on the right of the plaintiff ? OPP

Whether the suit is not maintainable in the present form ? OPD

Whether the suit is bad for nonjoinder of necessary parties ? OPD

Whether the plaintiff has concealed the material facts ? If so, its effect ? OPD

Whether the suit abates in view of preliminary objection No. 7 ? OPD

Relief.

An additional issue was framed on 16.4.1986 which is an under :

1A. Whether deceased Chhota executed a Will in favour of defendant 1 ? If so, to what effect ? OPD

On a consideration of the oral and documentary evidence led by the parties, the trial court decided issues No. 1 and 2 in favour of the defendants and against the plaintiff. Issue No. 1A was also decided in favour of the defendants and against the plaintiff. It was held that the Will set up by Hawa Singh defendant was validly executed by Chhota in his favour. The other issues were decided in favour of the plaintiff and against the defendants. In view of the findings recorded on issues No. 1, 1A and 2 the suit of the plaintiff was dismissed with costs on 30.9.1988. He filed an appeal before the Additional District Judge, Panipat on 4.11.1988. On 13.2.1993 the plaintiffrespondent filed an application under Order 6 Rule 17 of the Code of Civil Procedure (for short the Code) seeking amendment in the plaint for taking additional pleas to challenge the impugned decree. It was alleged for the first time that the suit property was ancestral in the hands of Chhota and that the same was in possession of Ram Sarup mortgagee and as such Chhota was not competent to transfer that property in favour of Hawa Singh. It was also alleged that Chhota was an old, infirm, and not of sound disposing mind at the time of the execution of the Will which is, therefore, illegal and void on this ground as well. The application was opposed on the ground that the pleas sought to be taken were neither material nor necessary for adjudication of the suit and that the application was highly belated and was filed with an intention to prolong the litigation. On a consideration of the submissions made by the counsel for the parties, the learned Additional District Judge accepted the plea of the plaintiff and allowed the application for amendment. Since the plaint was allowed to be amended the lower appellate court observed that no useful purpose would be served in discussing the evidence on record on different issues. Consequently, the appeal was allowed on 25.9.1996 subject to payment of Rs. 5,000/ as costs and the case remanded to the trial court for a fresh trial of the suit. It is against this order that the present second appeal has been filed.

It was strenuously urged by the learned counsel for the appellant that the lower appellate court acted illegally in remanding the case to the trial court without setting aside the judgment and decree on merits. It is contended that before the power of remand under Order 41 Rule 23A of the Code could be exercised, it was necessary for the lower appellate court to first set aside the findings of the trial court on all the issues and reverse the decree on merits in appeal before the case could be sent back for retrial. It was also argued that there was considerable delay in filing the application for amendment and since the plaintiff had not furnished any explanation much less satisfactory the same should not have been allowed by the learned Additional District Judge. It was also contended that the application for amendment could not be allowed because if the additional pleas now sought to be taken had been raised in a fresh suit the same would have been barred by time. Learned counsel for the respondents, however, submitted that the amendment can be allowed at any stage of the proceedings and even at the appellate stage and since the amendment was necessary to determine the real controversy between the parties the lower appellate court was justified in allowing the application for amendment and remanding the case for fresh decision.

Having given my thoughtful consideration to the rival contentions of the parties, I find merit in the first submission made by the learned counsel for the appellant. Rule 23A of Order 41 read as under :

"23A Remand in other cases :

Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."

A perusal of this provision would show that the appellate court will have the power under Rule 23 only after it has reversed the decree in appeal and then considers retrial necessary. Before the appellate court can remand a case for retrial to a lower court it has to come to a conclusion that the decision of the trial court is liable to be reversed or set aside on merits. Order 41 Rule 23A of the Code presupposes that if the decree is reversed in appeal and retrial is considered necessary, it is only then that the power of remand can be exercised. An appellate court cannot reverse the decree as a matter of course whenever it thinks that retrial has become necessary. It is obvious that in order to reverse a decree the findings given by the court on the issues are to be considered and are to be set aside before a decree can be said to have been reversed. Without doing so, the decree cannot be reversed in appeal. In the instant case, the lower appellate court has not reversed any of the findings recorded by the trial court on issues No. 1, 1A and 2. Merely because it decided to allow the application for amendment of the plaint, it could not remand the case for a retrial. The learned Additional District Judge has in fact observed that he is not discussing the evidence on record to examine the correctness of the findings recorded by the trial court because he is allowing the application for amendment. In view of what I have said above, the order of remand passed by the lower appellate court cannot be sustained. The view that I have taken finds support from the judgments of this court in Jangir Singh and others v. Surinder Singh and others, 1979 P.L.R. 690, Kartar Singh v. Punjab and Sind Bank and others, 1988(2) R.R.R. 334 : 1987(2) P.L.R. 92 and Rajinder Singh v. Mehar Singh and others, 1990(1) C.L.J. 423 : 1991(1) RRR 188 (P&H).

Since I am upholding the first contention raised by the learned counsel for the appellant, it is not necessary to discuss the other submission made at the time of arguments.

In the result, the appeal is allowed, the impugned order dated 25.9.1996 set aside and the case remanded to the Additional District Judge, Panipat with a direction to dispose of the appeal as also the application for amendment filed by the plaintiff in accordance with law. Parties through their counsel have been directed to appear before the lower appellate court on 28.9.1998. No costs.

S.A.O. No. 22 of 1997.

In this case the suit filed by the plaintiffs for possession by partition claiming 1/8th share in the land in dispute was contested only by defendant 24 and the following issues were framed :

Whether the plaintiffs and defendant No. 11 are owners in possession of land detailed in para No. 1 of the plaint ? OPP

Whether the plaintiffs have 1/8th share in the property in suit and are entitled to the possession thereof by way of partition ? OPP

Whether the plaintiffs have no locusstandi to file the present suit ? OPD

Whether the suit is not maintainable ? OPD

Whether the plaintiffs are estopped by their act and conduct from filing the present suit ? OPD

Whether the suit is barred by limitation ? OPD

Whether defendant 24 is a bona fide purchaser for value and consideration ? OPD

Relief.

The trial court decided issues No. 1 to 3 in favour of the plaintiffs whereas issues No. 4, 5 and 7 were decided against them. It was held under issue No. 4 that since Rajan and Babu sons of Lal Singh who had also purchased the share of Jaswant had not been impleaded as parties and in their absence the suit could not proceed. Under issue No. 5 the trial court held that a similar suit in respect of the land in dispute had previously been filed by Ram Chand plaintiff which was later withdrawn without seeking permission to file a fresh one and, therefore, the present suit was not maintainable and the plaintiffs were estopped from filing the same. Under issue No. 7 the trial court held that Hirdey Narain the contesting defendant was a bona fide purchaser for value and consideration. In view of the findings recorded on issues No. 4, 5 and 7 the suit of the plaintiffs was dismissed. In appeal the learned Additional District Judge, Faridabad reversed the findings of the trial court only on issue No. 4 and held that since the plaintiffs had moved an application for impleading Rajan and Babu as parties to the suit the same should have been allowed. It may be mentioned that the trial court dismissed the application on the ground that it was belated and held that the suit for partition could not proceed in the absence of some of the coowners. After reversing the finding on issue No. 4 the lower appellate court allowed the appeal and remanded the case to the trial court for retrial after impleading Rajan and Babu as parties in the case. This order is now under challenge in this second appeal.

Here again the lower appellate court has remanded the case without reversing the findings of the trial court on issues No. 5 and 7. Under issue No. 5 the trial court had held that on account of the withdrawal of a previous suit filed by the plaintiffs without seeking permission to file a fresh one, the present suit was barred and under issue No. 7 defendant 24 was held to be a bona fide purchaser for value and consideration. The findings on these two issues have not been reversed nor did the appellate court even advert to these two issues. As already observed before the power of remand can be exercised, the appellate court should first reverse the findings on all the issues recorded by the trial court in favour of the party in whose favour the suit was decided. Since this has not been done in the present case, the impugned order cannot be sustained. Consequently, the appeal is allowed, the order dated 1.5.1997 passed by the Additional District Judge, Faridabad set aside and the case remanded to the lower appellate court with a direction to decide the appeal on merits in accordance with law. Parties through their counsel have been directed to appear before the lower appellate court on 28.9.1998. There is no order as to costs.