Jangir Singh and others vs Surinder Singh and others

R.N. Mittal, J.—This appeal is directed against the judgment and decree dated January, 16, 1976, of the learned Additional District Judge, Sangrur, remanding the case under Order 41. Rules 23 A of the Cede of Civil Procedure (hereinafter referred to as Code) for fresh decision in accordance with law.

Briefly the case of Surinder Singh-Plaintiff is that he bad been (sic) by Smt. Ram Kaur widow of Ghanyia Singh, defendant No. 4 and an adoption deed dated October 19, 1959, was executed by her in his favour, he further alleged that in view of the adoption he became owner Of ore half property of the deceased husband of Smt. Ram Kaur It is then averted that Smt. Ram Kaur had agreed that she would hold the half share of the property as a life estate owner. Later she alienated the properly in favour of Jangir Singh, Gurbax Singh and Sher Singh defendants No. 1, 2 and 3 respectively vide sale dead March 24, 1966 The plaintiff instituted a suit for possession of one half shire and for declaration in respect of the other half share on the ground that the sale by defendant No. 4 in favour of defendants No. 1 and 2 was ineffective qua his rights.

The suit was contested by the defendant who inter alia, pleaded that the adeption deed was got executed in favour of the plaintiff by fraud, undue influence and misrepresentation, that Smt. Ram Kaur had become full owner of the property in view of section 14 of the Hindu Succession Act, and that defendants No. 1 and 2 were bona fide purchasers The learned trial Court dismissed the suit. The plaintiff went up in appeal against the judgment and decree of the trial Court to the learned Additional District Judge Sangrur.

During the pendency of the appeal, Smt Ram Kaur died. After her death the plaintiff appellant became entitled to possession of whole of the property. He applied to the Court to allow him to amend the plaint and convert the suit regarding half of the property from declaration to that of possession. The learned Additional District Judge allowed the amendment. The vendees filed fresh written statement to the amended plaint and therein took the plea that Smt. Ram Kaur had executed a will in favour of one Karnail Singh and, therefore, the plaintiff had no right to continue the suit. The learned Additional District judge in view of the plea of the vendees, sent the case to the trial court for recording evidence with respect to the will, which it did. After the evidence was received by the appellate Court an argument was raised before it that in view of the amendment in the written statement issues should be framed and the case be remanded for fresh trial Court under Order 1, Rule 3�A of the Code Consequently, the learned Additional District Judge framed the following two issues:�

Whether Smt Ram, Kaur had executed a valid will in favour of Karnail Singh? OPD

Whether the plaintiff is entitled to succeed to the property in dispute, in preference to Karnail Singh in case, the will in his favour is proved? O.P.D.

He accepted the argument of the learned counsel for the plaintiff, set aside the judgment and decree of the learned trial Court and remanded the case to if for fresh decision after giving the parties an opportunity to lead evidence The vender defendants have come up in appeal against this judgment to this Court

It is contended by Mr. Majithia the learned counsel for the appellants, that the learned Addition it District Judge got the evidence of the parties recorded on the new plea taken by the defendants. He further submits that after the evidence had been recorded, the learned Additional District Judge could not remand the case under Order 41, Rule 23 A of the Code of the Trial Court for fresh decision. According to him, the said Rule has no applicability in the present ease.

I have heard the learned counsel for the appellants and find force in his contention. Order 41 Rule 23 A of the Code is as follows:�

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 re-trail is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

From reading of the above rule, it is evident that the appellate Court is required in the first instance to revere a decree in appeal and thereafter send the case for re-trial, in case it considers it necessary. The appellate Court has no jurisdiction to remand the case under the said Rule without giving reasons for upsetting the decree. In this view I am fortified by the observations of the Madras High Court in Subramanian and Another Vs. Kaliammal and Others, . The Madras High Court had made an amendment in the CPC and introduced a similar Rule as is Order 41 Rule 23 A now after the amendment of the Code It was observed therein as follows:�

...Before an appellate Court can remand a matter for fresh disposal to the lower Court under Order 41, Rule 23, first it must come to a conclusion that the decision of the trial Court is liable to be reversed or set aside. In the absence of such conclusion a power of remand is not available to an appellate Court. Thus where a remand order is passed whether in a case where a suit has been disposed of upon a preliminary point or in a case where a suit has been disposed of on merits, the condition precedent for the exercise of the power of remand is a finding by the appellate Court that the judgment and decree of the trial Court is erroneous on facts or on law and therefore liable to be reversed or set aside. So long as the that finding has not been arrived at, there is no scope for the appellate Court reversing or setting aside the judgment and decree of the trial Court and as a consequence thereof remanding the suit for fresh disposal.

The aforesaid view was followed by a learned Single Judge of this Court in Walaiti Ram etc. v. Thakar Singh etc (1973) 75 P.L.R. 537. It will be advantageous to refer that this Court had also made an amendment in the CPC and had introduced Rule 25-A which was couched in the same language, in which the present rule 23 A is The learned Judge held that a plain reading of Rule 23-A shows that the decree has first to be reversed by the appellate Court and then the question arises whether a retrial of the suit is necessary. I am in respectful agreement with the above observations.

In view of the aforesaid reasons, the judgment and decree of the learned Additional District Judge is liable to be set aside.

For the reasons recorded above, I accept the appeal, set aside the judgment end decree of the learned Additional District Judge, and remand the case to the learned District Judge, Sangrur, to decide the appeal. The costs in the appeal shall be the costs in the suit. The parties are directed to appear before the learned District Judge, Sangrur, on October 8, 1979, who may decide the case himself or transfer it to a Court of competent jurisdiction.