Jeewana Ram Alias Jawan Mal vs Shri Vikram Singh

Arun Bhansali, J.—This appeal under Order XLIII, Rule 1(u) CPC has been filed aggrieved by the judgment dated 22.03.1999 passed by the learned first appellate court in the appeal preferred by respondent-plaintiff Vikram Singh, whereby, after reversing the findings recorded by the trial court on issue Nos. 2, 8 & 9 it remanded back the matter to the trial court for decision on issue Nos. 3, 4, 5, 6, 11 and 12 after providing parties an opportunity of hearing. The brief facts of the case are that the plaintiff - Vikram Singh filed a suit on 18.01.1979 for arrears of rent and eviction against defendant Jeewana Ram alias Jawan Mal inter alia with the averments that a house by the name ''Anand Niwas'' of the petitioner''s ownership is situated at Sumerpur. A part of the said house was taken on rent by the defendant on 01.02.1973 for using as Workshop at a monthly rent of Rs. 120/- and rent note was executed on the same day. Averments were made raising grounds of the default in payment of rent, the premises having become unsafe for human habitation and bona fide requirement.

The suit was resisted by the defendant by filing a written statement. The execution of the rent note dated 01.02.1973 was denied and it was claimed that the rent note filed with the suit was a fraudulent document. The relationship of landlord and tenant was also denied. The grounds raised for eviction in the suit were also denied. In the additional pleas it was stated that defendant has constructed workshop on the land in question with his own funds. It was also claimed that Shri Anand Singh, father of the plaintiff and his power of attorney holder, was an officer in the Police at Sumerpur and, has since retired, he had got his signatures on a stamp paper seven years back by undue influence and even if his signatures are proved on the rent note, still the said document cannot be acted upon as the same was executed under undue influence. It was prayed that the suit be dismissed.

The learned trial court framed as many as 13 issues. The issues so far as relevant to the present appeal are issue Nos. 2, 8 and 9, which reads as under:-

While issue No. 2 related to the fact as to whether the suit premises was let out by Vikram Singh to the defendant on 01.02.1973 at a monthly rent of Rs. 120/- and rent note was executed in favour of the plaintiff, issue No. 8, based on the additional plea, was whether Anand Singh, power of attorney holder of the plaintiff, has got executed the rent note under undue influence from the defendant and, therefore, the suit filed by the plaintiff deserves to be rejected and issue No. 9 related to whether the rent note was without any consideration. While burden of issue No. 2 was on the plaintiff, the burden of issue Nos. 8 and 9 was placed on the defendant.

On behalf of the plaintiff, PW-1 Vikram Singh - plaintiff himself, PW-2 Ladu Ram Mali - tenant, PW-3 Anand Singh - father of plaintiff and his power of attorney holder, PW-4 Moti Singh - witness to the rent note and PW-5 Chimna Ram Suthar - another tenant were examined and seven documents were got exhibited. On behalf of the defendant, DW-1 Jawan Mal and DW-2 Babu Lal Arya were examined and one document was exhibited.

The learned trial court after hearing the parties came to the conclusion on issue No. 2 that the suit premises was not let out by the plaintiff to the defendant. While considering issue No. 2, the learned trial court came to the conclusion that there was contradictions in the statements of PW-2 Ladu Ram and PW-5 Chimna Ram Suthar, who have been produced as tenants for the periods before the premises was allegedly let out to the defendant. Further, in view of the status of Anand Singh, who was said to be a Police Officer at the relevant time, it came to the conclusion that the document was got executed from the defendant by threatening him. On issue Nos. 8 and 9 the learned trial court, in view of its finding on issue No. 2, came to the conclusion that the rent note was got executed under threat and undue influence from the defendant and the same was without any consideration. On the basis of findings recorded on issue Nos. 2, 8 and 9, the learned trial court did not decide issue Nos. 3, 4, 5, 6, 11 and 12, which essentially related to the grounds of eviction, and the suit was dismissed.

Feeling aggrieved by the judgment and decree dated 01.05.1991 passed by the learned trial court, the plaintiff filed first appeal u/s 96 CPC before the District Judge, Bali.

The learned first appellate court, after hearing the parties by its judgment dated 22.03.1999 reversed the findings on issue Nos. 2, 8 and 9 and remanded back the matter to the trial court for decision on issue Nos. 3, 4, 5, 6, 11 and 12 after giving full opportunity of hearing to the parties.

The defendant feeling aggrieved by the judgment of the first appellate court has approached this Court by way of the present appeal.

I have heard learned counsel for the parties and perused the record of both the courts below.

It was contended by learned counsel for the appellant that the order of remand passed by the learned first appellate court is absolutely incorrect and against the settled position of law relating to power of remand. It was contended that the first appellate court was not justified in remanding the matter only on issue Nos. 3, 4, 5, 6, 11 and 12 and, in case if it felt that the matter was required to be remanded back, the entire suit should have been remanded back and the piecemeal remand has resulted in grave prejudice to the appellant. It was also contended that there were serious contradictions in the statements of PW-2 Ladu Ram and PW-5 Chimna Ram Suthar and, therefore, the learned trial court was justified in its finding on issue No. 2. Further, the plaintiff has failed to prove his title. It was further submitted that the very fact that the father and power of attorney holder of the plaintiff was a Police Officer at the time of alleged execution of the rent note dated 01.02.1973, the findings on issues No. 8 and 9 relating to the execution of rent note Exhibit-2 under threat and undue influence and the same being without consideration is well proved and, therefore, reversal of findings on those issues are also without any basis and incorrect. The plaintiff has miserably failed to prove the relationship of landlord and tenant between him and defendant, inasmuch as, no receipt of rent etc. was produced and consequently the judgment passed by the first appellate court deserves to be set aside and in any case, the judgment of piecemeal remand deserves to be quashed and set aside.

The learned counsel placed reliance on the judgment of Hon''ble Supreme Court in the case of Rajinder Sharma Vs. Arpana Sharma, , Bimlesh and Others Vs. New India Assurance Co. Ltd., and Niranjan Lal Vs. U.I.T. and Others, in support of his contentions.

On the other hand, it was submitted by learned counsel for the respondent-plaintiff that the findings of learned first appellate court are well considered and based on the oral and documentary evidence. The learned trial court had given undue importance to the so called contradictions in the statements of PW-2 Ladu Ram and PW-5 Chimna Ram Suthar, when in fact the so called contradictions were natural on account of the age of the witnesses and the time which has elapsed. It was further submitted that the relationship of landlord and tenant is amply proved from the rent note Exhibit-2, the signatures on the rent note subsequent to the execution of the rent note indicating payment of rent and Exhibits-3 and 4, which are rent receipts issued by the father of the plaintiff and which contain signatures of the defendant for the period 01.08.1976 to 31.08.1976 (Exhibit-3) and 01.01.1977 to 31.01.1977 (Exhibit-4) proves relationship beyond any doubt. It was also submitted that Moti Singh PW-4, who is witness to Exhibit-2 has clearly stated that the rent note was executed in his presence by the defendant and his testimony has withstood the lengthy cross-examination and, therefore, the execution of the rent note is also well proved. It was further submitted that the fact that defendant has raised additional plea regarding the signatures on Exhibit-2 being inscribed by him under threat and undue influence clearly shows that the signatures are admitted. However, the defendant has failed to produce any evidence in support of his so called theory of threat and undue influence. On the issue of piecemeal remand, it was submitted that the judgment passed is just and proper in the facts and circumstances of the case and that the judgment under appeal does not require any interference and the trial court needs to be directed to decide the suit expeditiously.

Before proceeding further in the matter, the scope of appeal under Order XLIII, Rule 1(u) CPC needs to be noticed. The said provision provides an appeal against an order remanding a case under Rule 23 or Rule 23A of Order XLI, wherein, appeal would lie from the decree of the appellate court.

The Hon''ble Supreme Court in the case of Narayanan Vs. Kumaran and Others, has considered the scope of appeal under Order XLI, Rule 1(u) CPC and held as under:-

It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court.

The Hon''ble Supreme Court has categorically held that an appeal from order of remand under Order XLIII, Rule 1(u) CPC must be in compliance with requirements of Section 100 and, therefore, must be confined to question of fact having a bearing on the order of remand and the Court cannot go into the excruciating details of facts and appreciate evidence.

The argument raised by the learned counsel for the appellant that the learned trial court was not justified in remanding the matter on issue Nos. 3, 4, 5, 6, 11 and 12 only and if it had reached a conclusion that the matter was liable to be remanded back then, in that case, it was bound to remand the entire matter in place of a piecemeal remand, is clearly unsustainable. The learned trial court after recording its finding on issue Nos. 2, 8 and 9 did not record any finding on issues relating to the merit of the suit for eviction and dismissed the same, therefore, aggrieved by the said finding, the plaintiff filed the first appeal.

Provisions of Order XLI, Rule 23 reads as under:-

Remand of case by Appellate Court.-Whether the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand.

The above provision clearly provides for remand of a case by the appellate court where a suit has been disposed of upon a preliminary point and the said decree is reversed in appeal. Admittedly, the suit was disposed of by the trial court upon the preliminary point relating to the letting out of the premises by the plaintiff to the defendant and on coming to the conclusion that the rent note was executed under threat and undue influence and without consideration based on its conclusion on issue Nos. 2, 8 and 9. The findings were reversed by the first appellate court and, therefore, it was justified in remanding the matter for decision on the remaining issues i.e. No. 3, 4, 5, 6, 11 and 12. To argue that even after reversing the findings on issues No. 2, 8 and 9, the appellate court should have remanded back the entire case for decision afresh is clearly unsustainable, inasmuch as, once the appellate court has recorded the findings on issues No. 2, 8 and 9, there was no occasion to remand the said issues again for a retrial.

The judgments cited by the learned counsel for the appellant in this regard do not help the cause of the appellant, inasmuch as, in the case of Rajinder Sharma (supra), the first appellate court remanded the matter after accepting application under Order XLI, Rule 27 CPC which appeal in the opinion of Hon''ble Supreme Court could have been decided by the first appellate court as the documents which were sought to be adduced by way of adducing evidence were on record and the first appellate court being the court of both fact and law the remand was not warranted. The case of Bimlesh (supra) was a case where the claim application was rejected on decision on a preliminary issue, wherein, the Hon''ble Supreme Court opined that such matters where summary procedure applies should not be decided in piecemeal. Judgment of this Court in the case of Niranjan Lal (supra) related to a case where issues were re-framed and the matter was remanded back to the trial court to take fresh evidence on newly framed issues and to decide the case, which procedure was not appreciated by this Court. None of the above judgments deal with the case where the trial court has decided the suit on preliminary issue and has not rendered any finding on rest of the issues and, as such, the said judgments are clearly distinguishable.

As stated above, the case in hand is clearly covered by the provisions of Rule 23 of Order XLI CPC and the procedure adopted by the learned first appellate court cannot be faulted.

So far as the arguments relating to reversal of findings by the first appellate court is concerned, it would be seen that the learned trial court was much obsessed with the so called contradictions in the statements of PW-2 Ladu Ram and PW-5 Chimna Ram Suthar read with the statement of PW-3 Anand Singh - father of the plaintiff. Besides the fact that the said contradictions are minor and have hardly any implication on the issue, in view of the age of the witnesses and the fact that the statements were being recorded after a lapse of almost two and a half decades, the said contradictions were but natural. The learned trial court has failed to take into consideration the important documents being Exhibit-3 and Exhibit-4 which were the rent receipts produced by the plaintiff and duly proved in his statement. The statement of PW-4 Moti Singh, who is witness to rent note Exhibit-2 is a crucial witness and he has categorically stated that the defendant has put signatures on Exhibit-2 in his presence. The detailed cross-examination of the said witness has in fact resulted in fortifying his statement in chief.

The theory of threat and undue influence propounded by the defendant on which issues No. 8 and 9 were framed appears to be a made up defence in an attempt to get out of the rent note Exhibit-2. The date of rent note Exhibit-2 is 01.02.1973 and the defendant on the issue of threat on his statement has stated as under:-

The above part of defendant''s testimony clearly belies the plea of threat or undue influence. The learned first appellate court has minutely examined the evidence and has given detailed and exhaustive reasons for reversing the findings on issue Nos. 2, 8 and 9 and the learned counsel for the appellant has failed to point out perversity in the finding of first appellate court, which may warrant interference of this Court. Even otherwise, in view of the judgment of Hon''ble Supreme Court in the case of Narayanan (supra), in the present appeal it is not open for the appellant to agitate questions of facts.

The finding recorded by the first appellate court is essentially a finding of fact and on that count also the same does not require any interference. In view of the above discussion, the appeal filed by the appellant has no substance and the same is, therefore, dismissed. The record of the trial court be sent back, immediately and the trial court is directed to expeditiously dispose of the suit as the suit was filed way back in the year 1979 and almost 33 years have passed ever since. The parties are directed to remain present personally or through counsel before the learned trial court on 04.03.2013. No costs.