Krushna Chandra Nayak vs Orissa Sanitary Mart

A.K. Parichha, J.—This appeal is directed against the judgment passed by the learned Ad hoc Addl. District Judge, Fast Track Court No. IV, Bhubaneswar in R.F.A. No. 35 of 2004 setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bhubaneswar in T.S. No. 304 of 2001 and remanding the matter to the said Court with a direction to recast the issue No. 6, allow additional evidence on that issue and to dispose of the suit afresh.

The Appellant as the Plaintiff, instituted the above noted suit for eviction of the Defendant-Respondent from the suit premises and for recovery of damages and arrear monthly rent. The case of the Plaintiff is that he is the owner and landlord of the suit premises which situates over plot No. 56 of Budhanagar, Bhubaneswar. The Defendant, a registered partnership firm, entered into an agreement through its Managing Partner, Subash Ch. Patra to occupy the same as a tenant and was inducted as a tenant in the suit premises in the year 1984. The said agreement was renewed from time to time and rent was accordingly enhanced keeping in view the market rate. While the matter stood thus, some dispute arose between the parties and the Plaintiff filed T.S. No. 253 of 1990 in the Court of Subordinate Judge, Bhubaneswar for eviction of the Defendant. But the said suit was dismissed primarily for want of proper notice u/s 106 of the Act. The Plaintiff, as Appellant, preferred appeal against that judgment vide T.A. No. 38 of 1998, but the same was eventually withdrawn. Taking advantage of the dismissal of suit and the withdrawal of the appeal,the Defendant initiated T.S. No. 177 of 1999 before the learned Civil Judge (Junior Division), Bhubaneswar for restoration of electricity, which had been disconnected, but with the intervention of some well wishers, both the parties settled the dispute and entered into an agreement dated 14.9.1999 agreeing that the Defendant would retain the shop room for 15 months with effect from 1.9.1999 on monthly rent of Rs. 5,000/- and on completion of 15 months, he would deliver vacant possession of the suit premises to the Plaintiff. The Defendant accordingly remained in continuous possession and paid rent at the agreed rate, but after completion of the stipulated period of 15 months in stead of vacating the shop suit room instituted T.S. No. 149 of 2001 before the learned Civil Judge (Senior Division), Bhubaneswar seeking permanent injunction against the Plaintiff. Finding that the Defendant is not vacating the shop room even after the period stipulated in the agreement, the Plaintiff served a notice u/s 106 of the T.P. Act on the Defendant on 8.5.2001 calling upon the Defendant to vacate the suit premises. After receipt of notice, the Defendants refuted the allegations and did not vacate the suit house for which the Plaintiff filed the instant suit for eviction.

The Defendant-Respondent in its written statement refused the allegations made in the plaint and pleaded, inter alia, that since 1966 it was inducted as a tenant in respect of the suit premises along with the adjoining rooms, but in 1987 on the request of the Plaintiff it vacated the other rooms and on 10.4.1996, a fresh agreement was entered into between the parties, wherein the Defendant was allowed to enjoy the suit premises on payment of monthly rent of Rs. 4,500/- enhanceable by 10% after completion of every 3 years. The Defendant pleaded that it cannot be evicted from the suit premises in any manner as it has invested huge amount in that premises as well as in business. It was further pleaded that the agreement dated 14.9.1999 is simply a compromise agreement which was never acted upon due to non-performance of the terms and conditions by the Plaintiff and for that reason the earlier agreement dated 10.4.1996 still subsists. The Defendant also challenged the legality of the notice u/s 106 of the T.P. Act on the ground that the said notice was for termination of the agreement dated 14.9.1999, which was never acted upon. The maintainability of the suit was also challenged on the ground that the same is barred under the principle of res judicata. Basing on the pleadings of the parties, the learned trial Court framed the following eight issues;

Is the suit maintainable?

Whether there is cause of action to file the present suit?

Whether the suit is barred by Limitation?

Whether the suit is bad for a valid and binding notice u/s 106 of T.P. Act.

Whether the suit is hit under principle of res judicata?

Whether the agreement of dated 14.9.1999 is a valid agreement between the parties and whether it is acted upon or not?

Whether the Defendant is liable to be evicted and to pay damage or arrear house rent?

To what else relief the Plaintiff is entitled?

In support of their respective pleadings, the parties produced oral and documentary evidence. The Plaintiff examined two witnesses and produced the documents, which were marked as Exts.1 to 11. The Defendant examined three witnesses and produced the documents, which were marked as Exts.A to C. On consideration of these evidences, the learned trial Court decreed the suit with the finding that the agreement dated 14.9.1999 is a valid agreement and was acted upon by the parties, that the notice u/s 106 of the T.P. Act was clear, unambiguous regarding determination of the tenancy and is a valid one.

The Defendant, as Appellant, carried appeal before the District Judge, Khurda at Bhubaneswar vide RFA No. 35 of 2004, which was transferred to the learned Ad hoc Addl. District Judge, Fast Track Court No. IV, Bhubaneswar. The said Court heard the appeal on merit and by the impugned order set aside the judgment and decree of the learned trial Court and remanded the suit with the above mentioned direction. The Plaintiff-Appellant has challenged the legality of that order in this appeal.

Learned Counsel for the Appellant challenges the legality of the impugned order on the plea that the same is opposed to the provisions of Order 41, Rule 24, CPC He states that when the evidence on record is sufficient to enable the appellate Court to pronounce the judgments, there was no justification on the part of the learned lower appellate Court to make an open remand after re-settling the issue No. 6, particularly when the existing issues were enough to take care of all the controversies including the one indicated in the re-settled issues. It is further contended that the issue relating to admissibility of the documents Exts.1 to 10 could have been decided by the learned lower appellate Court as it was a Court of fact and therefore, remand of the suit with a direction to the trial Court to consider the admissibility of the exhibits was not proper. In support of his contentions Mr. Mishra, cited the cases of Harmohan Mishra and Anr. v. Anapurna Dibya and Ors. 1987 (II) OLR 127, Purna Chandra Mishra v. Udayanath Mohanty and Anr. 1998 (I) OLR 33 , Chennuru Gouri Varaprasad Babaji Vs. State of Orissa and Others, , Udayanath Pani Vs. State Transport Authority, Orissa, Cuttack and Others, Smt. Sushila Panda and Another Vs. Sarat Kumar Sahu and Others Giridhari Pradhan (and after him) Srimati Pradhan and Others Vs. Lord Jagannath Mahaprabhu and Another, Vundavilli Venkataraju Vs. Kora Laxman Rao and Others, , Rushi and Another Vs. Madan Behera and Another, , which essentially say that the learned lower appellate Court should make all endeavour to decide a case and pronounce the judgment where the evidence on record is sufficient to enable the said Court to arrive at a conclusion and that it would be proper for such Court to remand a case only when some further enquiry is necessary to be made and not to avoid responsibility in the name of "ends of justice" and "proper adjudication" as because the conclusion of a lis on merit is the cardinal principle.

Mr. R.C. Sarangi, learned Counsel for the Respondent while supporting the impugned order of remand challenges the maintainability of the appeal on the ground that the impugned order is not an order coming under Order 41, Rule 23-A of the of the CPC and is accordingly not appealable under Order 43, Rule 1(u) of the CPC He states that all appeals exist merely by statute and unless the statutory conditions are fulfilled, the Court cannot entertain them. According to him, Order 41, Rule 23-A of the CPC empowers the appellate Court to pass order of open remand only after the findings on the issues recorded by the learned trial Court is reversed and a fresh adjudication is considered necessary, so where the appellate Court does not decide any issue or issues at all and simply remands the matter then it would not be appealable order as nothing is determined conclusively by the appellate Court. Mr. Sarangi strongly argued that in the impugned order, the learned first appellate Court did not record any finding reversing any of the issues, but simply set aside the judgment and decree and remanded the matter with certain observations and therefore, the order neither amounts to a decree nor amounts to an order under Order 41, Rule 23-A of the CPC and for that reason, the appeal against the impugned order is not maintainable. In support of his contention, Mr. Sarangi cited the cases in Ohene Moore v. Akesseh Tayee, AIR 1935 P.V. 5, Smt. Ganga Bai Vs. Vijay Kumar and Others, Khub Chand (deceased by LRs) Smt. Katori Devi Vs. Ram Chand, Rameshwar Dayal v. Banda (dead) through L.Rs. and Anr. 1994 (I) CCC 6 Permanand Kumar and Others Vs. Bhon Lohar and Others, Ram Kishore Vs. Yashpal Kunwar, to indicate that all appeals exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of justice to entertain them and that all findings recorded by the lower Courts are not appealable and further that an order which does not conclusively determine the rights and liabilities of parties in controversy, which has arisen between them cannot be a decree or an appealable order. He also cited the cases in REMCO Inds. Workers House ldg. Coop. Soc. v. Lakshmeesha M. and Ors. 2003 SAR (C) 804 (SC), Duryodhan Mohapatra Vs. Bharat Mohapatra and Others, , Narayanan v. Kumaran and Ors. 2004 (2) CCC 315 (SC), Dinamani Debi v. Paramananda Choudhury and Anr. 1980 CLT 328 to highlight that the order of remand passed by the learned lower appellate Court without recording its findings on any of the issues does not amount to a decree or an appealable order and that the appeal against such order would not lie. He also cited the case of Remco Industrial Workers v. Laxmi Sa and Ors. 2005 (I) CCR 756; 2003 SAR (C) 804 to show that the lower appellate Court is duty bound to frame proper issues suo motu if the Courts below failed to do their duties and then remand the suit for adjudicating those issues. According to Mr. Sarangi when no specific issue was there as to whether Ext.1 was an agreement of tenancy and whether it was acted upon and whether proper notice terminating such agreement was served, learned lower appellate Court did not go wrong in re-framing that specific issue and remanding the suit for fresh adjudication.

There is no dispute that all appeals exist merely by statute and unless statutory conditions are fulfilled Courts cannot entertain them. So, the right of appeal inhers in no one and therefore, an appeal for it''s maintainability must have the clear authority of law. It is also not in dispute that an appeal lies only as against decree or an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1, CPC and that no appeal can lie against a mere finding. But a detailed analysis on this subject is academic as the impugned order has been passed under the provision of Order 41, Rule 23-A, Code of Civil Procedure, which is appealable under Order 43, Rule 1(u), Code of Civil Procedure.

The allegation of the Respondent is that the impugned order does not come within the ambit of Order 41, Rule 23-A, CPC and is therefore not appealable. So, it is only to be seen if the impugned order amounts to an order under Order 41, Rule 23, Code of Civil Procedure.

Order 41, Rule 23-A which was inserted by Act 104 of 1976 reads as follows:

23-A. Remand in other cases- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than or, a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

Rule 23 of Order 41 reads thus:

Remand of case by Appellate Court-Where 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 thanks 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.

So, the order of remand can be deemed to be an order under Order 41, Rule 23-A CPC if the following pre-conditions are satisfied:

(a) that the decree has been challenged in appeal and the case before the learned trial Court has been disposed of other than on preliminary points;

(b) the decree is reversed in appeal by the appellate Court by an order;

(c) re-trial is considered necessary by the appellate Court for which remand of the matter was felt necessary;

(d) in such a case, all the powers of the appellate Court as has been provided under Order 41, Rule 23 would also be available to the appellate Court.

There is no dispute that the judgment and decree of Title Suit No. 253 of 1990 was under challenge in the appeal and that the said suit had been disposed of other than on preliminary points. The impugned order shows that the learned lower appellate Court set aside that judgment and decree of the learned trial Court and then remanded the suit for fresh disposal in the light of the directions given in that order. The argument of Mr. Sarangi is that in absence of any specific recording by the learned lower appellate Court that the findings on the issues are reversed, the order becomes an interlocutory order u/s 151, CPC and that no appeal will lie against such order. He relies on the ratio of the case reported in Rameshwar Dayal v. Banda (dead) through L.Rs. and Anr. (supra) and Dinamani Debi v. Paramananda Choudhury and Anr. (supra). The ratio noted in the above cases would not apply to the present situation for the simple reason that the facts and circumstances were different and the question of remand in exercise of inherent power u/s 151, CPC was the issue under consideration in those cases. No doubt the learned lower appellate Court has not specifically mentioned in the impugned order that the findings on the issues recorded by the learned trial Court are reversed, but he has clearly recorded that the judgment and decree are set aside which tantamount to reversal of the findings of the trial Court. Moreover, the impugned order contains remark that the findings in the issues of tenancy are not acceptable as the admissibility of Ext.1 had not been decided.

Fact remains that the judgment and decree recorded on merit by the learned trial Court was under challenge and the learned lower appellate Court on consideration of the evidence and circumstances remanded the suit to the trial Court for fresh disposal. Such order clearly comes within the ambit of Rule 23-A as because if in stead of remanding the suit a decree would have been passed by the learned lower appellate Court, then the said decree would have been appealable.

For the aforesaid reasons, I am of the considered opinion that the present appeal is maintainable.

The next question is whether the order of remand in the given circumstances is justified.

Rules 23, 23-A and 25 of Order 41 deal with powers of remand of the appellate Court.

Rule 23 empowers the appellate Court to pass an order of remand if the trial Court has disposed of a suit upon a preliminary point and the decree is reversed in appeal directing what issue or issues are to be tried after the remand.

Rule 23-A, which has been substituted by the Act of 1976 is more comprehensive in the sense that under this provision the suit may be remanded to the lower Court even though such Court disposed of the entire case on merits. In other words, a remand under this Rule is in the nature of an open remand under which the whole case is remitted back to the lower Court for re-trial subject to no restrictions except those specifically imposed by the appellate Court.

In a remand under Rule 25, the appellate Court retains the matter on its file and only calls for a finding by the lower Court on some issue or issues when the lower Court has omitted to frame or try any issue or to determine any question of fact essential to the right decision of the suit upon merits.

Otherwise, as contemplated in Rule 24, where the evidence on record is sufficient to enable the appellate Court to pronounce the judgment, the appellate Court has to finally determine the matter and in doing so may recast any of the issues.

A remand implies setting aside the orders passed by the inferior authority and it can be made if the order under appeal is based on insufficient material or that some fresh evidence has to be considered. A remand may be proper when there is some further enquiry to be made or some further evidence is required to be brought on record, but a remand is never proper for re-writing a judgment when the judgment is found to be defectively drafted or where all the materials were before the appellate Court, which were sufficient to adjudicate the case. If the materials on record are not sufficient for just decision of the appeal and the appellate Court considers some further enquiry necessary, which enquiry cannot conveniently be made at the appellate stage, the case may be remanded by the appellate authority for conducting such enquiry for re-determination of the case. But if the record contains all the materials necessary for the disposal of the matter, the appellate authority should dispose of the matter finally instead of remanding the case to the primary authority. This is because early disposal of a lis is always in the best interest of the litigants and the appellate Court being the Court enjoying the synonymous power of the trial Court is duty bound to adjudicate the dispute finally if it is possible from the materials on record. This view finds support from the observation of this Court in the cases of Harmohan Misra and Anr. v. Anapurna Dibya and Ors. 1987 (II) OLR 157, Udayanath Pani Vs. State Transport Authority, Orissa, Cuttack and Others, , Purna Chandra Mishra v. Udayanath Mohanty and Anr. 1998 (I) OLR 33, Chennuru Gouri Varaprasad Babaji Vs. State of Orissa and Others, , Giridhari Pradhan (and after him) Srimati Pradhan and Others Vs. Lord Jagannath Mahaprabhu and Another, , Vundavilli Venkataraju Vs. Kora Laxman Rao and Others, .

So, power of remand should to be utilized as a matter of course and the same must be avoided when the appellate authority can make necessary enquiry, which would save both time and expenses on litigation to some extent.

In the present case, the learned lower appellate Court remanded the suit on the grounds that the learned trial Court did not record any finding on the objection raised by the Defendant regarding admissibility of the agreement, Ext.1 and that issue No. 6 had not been properly cast.

The word ''appeal'' is in legal parlance held to mean the renewal of a cause from an inferior or subordinate to a superior forum in order to test or scrutinize the correctness of the impugned decision. It amounts to a complaint to a higher forum that the decision of the subordinate authority is erroneous and, therefore, liable to be rectified or set right. It is a continuation of judicial proceeding. The power of the appellate authority ordinarily is concurrent to that of the primary authority and the former can pass all such orders under law, which the latter can pass. Therefore, in the absence of compelling reasons the power of remand should not be exercised in a routine manner as a matter of course, but such power should be exercised to set right the mistake or omission, if any, caused by the inferior authority. Deciding the issue of admissibility of some documents is within the legal competency of the lower appellate Court. If objection had been raised by the Defendant about the admissibility of Exts.1 to 10, then lower appellate Court could have considered that objection and could have recorded its own finding about admissibility of those documents. This view is supported by the observation made in the case of Chennuru Gouri Varaprasad Babaji (supra) that an appeal is not to be remanded for de novo disposal on the ground that some of the documents, which should not have been admitted in evidence have been exhibited or objection raised to the admissibility of particular documents was not finally adjudicated by the learned trial Court.

The validity of the agreement dated 14.9.1999 was under challenge. The learned trial Court, therefore, framed issue No. 6 as follows:

Whether the agreement dated 14.9.1999 is a valid agreement between the parties and whether it was acted upon or not?

The learned 1st appellate Court observed that this issue does not speak as to whether the relationship of landlord and tenant was created between the Plaintiff and the Defendant in view of the agreement and therefore, recast the issue as follows:

Whether the document dated 14.9.1990 is valid and binding agreement between the parties creating relationship of landlord and tenant between the Plaintiff and Defendant and if it was acted upon?

The parties have pleaded that there was existence of relationship of landlord and tenant. The only question was whether the agreement dated 14.9.1999 was a valid agreement and whether that was acted upon. Issue No. 6 framed by the learned trial Court clearly conveyed such dispute and the parties also consciously led evidence in this regard and in the finding recorded by the learned trial Court on issue No. 5 and 6, this aspect was answered in extenso. The correctness of the findings could have been analysed and decided by the learned 1st appellate Court when all the evidence and materials were there. Therefore, there was no good reason to recast the issue and remand the suit for fresh disposal on that ground.

As has been stated above, Order 41, Rule 24, CPC clearly mandates the lower appellate Court to re-settle the issue when necessary and to pronounce the judgment where the evidence on record is sufficient to decide the issue. Similarly, the power of the appellate Court being co-extensive with that of the trial Court, it is competent to decide about the admissibility or otherwise of the documents adduced by the parties. So, the remand on the ground that particular documents were admitted in evidence without considering the objection and on the ground that the issue No. 6 needs recast cannot be considered as legal and proper.

For the aforesaid reasons, the impugned order of remand is set aside and the matter is remitted back to the learned 1st appellate Court for disposal of the appeal on merit from the evidence available on record. The SAO is thus allowed on contest, but in the peculiar circumstances, there shall be no order as to cost.