Nirbhey Singh vs Gurdev Singh and ors.

G.R. Majithia, J.—This order disposes of SAO Noos. 16 and 17 of 1990 since common question of law and facts arise for determination therein.

The plaintiff/appellant has come up in second appeal against the order of the first Appellate Court who after permitting the defendant/respondents to amend their written statement set aside the judgment and decree of the trial judge whereby the suit of the plaintiff/appellant for a declaration that the sale deeds dated October 31, 1985 and October 7, 1985 were invalid and a decree for joint possession with regard to land measuring 37 kanals 16 marlas passed in their favour was set aside. The Appellate Judge after referring to the pleadings of the parties disposed of the application filed by the defendant/respondents under Order 6 rule 17 of Civil Procedure Code whereby the following amendment was sought in the written statement :

"That the plaintiffs and their family are Jat Sikh and their livelihood depends upon agriculture. That in the matters of alienation they are governed by Punjab Customary Law. Now no suit arises to challenge the alienations of the land under the Customary law as the law is abrogated that is why the plaintiffs have no right to challenge the disputed sale deed and the plaintiffs have no locus standi to file suit. It is also alleged that the suit has been filed by the plaintiffs at the behest of the alienor and which is collusive and the plaintiffs and the vendor reside together."

The amendment was allowed and after so doing the Appellate Judge set aside the judgment and decree of the trial Judge with the following observations :

"so I allow this application for amendment of the written statement. Since the application is filed after a long period, so this order is subject to payment of costs of Rs. 300/. As such the appeal is accepted and judgment and decree of the lower court are set aside. The parties are directed to file the amended written statement in the lower Court on 3051990 with the direction that after the receipt of amended written statement the learned trial Court will decide the case afresh according to law."

The order does not indicate why the Judge thought it convenient to set aside the well considered judgment and decree of the trial Judge passed after contest. The suit was contested on various issues. The parties were allowed full opportunity to lead evidence and thereafter the suit was disposed of on merits. The appellate Judge can set aside the judgment and decree of the trial court and remand the suit for fresh trial only under the provisions of Order 41 rules 23 and 23A of the Civil Procedure Code (for brevity hereinafter to be referred to as C.P.C.). Rule 23 of Order 41 CPC says that where the Court has disposed of the suit on 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 the issue or issues to be disposed of after permitting the parties to lead evidence. Rule 23A of Order 41 C.P.C. says that where the suit has been disposed of otherwise than on 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 of Order 41 C.P.C. The Appellate Judge has not mentioned in the order as to on what ground he though it fit to reverse the decree of the trial Judge. The decree of the trial Court has to be set aside under each issue. The reversal is not a matter of mere formality but of substance. The apex Court deprecated the practice of remand consequent on amendment of the pleadings in Gopal Krishnaji Ketkar v. Mamomed Jaffer Mohamed Hussein and another, AIR 1954 Supreme Court and held thus :

"Amendment at appellate stage claiming relief in proper form, purely, of formal character If the appellate Court thinks that any reply to the amendment by the defendant is necessary it should call one from the defendant and should itself determine whether, and if so how far, further proceedings were called for. Remand of case to lower Court held unnecessary."

The Appellate Judge has not to complete the formality that the judgment and decree of the trial Judge is reversed but has in law to reverse judgment and decree of the trial Judge on every issue which has been determined by the trial Judge. The remand is thus illegal.

For the reasons stated above the order of the first Appellate Court is set aside. The first Appellate Court is directed to admit the appeal against its original number and dispose of the same on merits. if the parties want to lead any evidence on the plea which has been allowed to be introduced by way of amendment in the written statement, they may be allowed to do so. No order as to costs. The parties to appear before the District Judge on January 18, 1991.