Phenphudi widow of late Balu Ram vs Harsukh Ram S/o. Moola Ram

This appeal is directed against judgment dated 14.03.2016

passed by the Additional District Judge No.2, Nagaur, whereby the

appellate court has partly allowed the appeal filed by the

respondent-defendant and while setting aside the decree dated

29.08.2011, has remanded back the matter to the trial court for

redetermining issues No.1, 3, 4 and 6 with a direction to take

additional evidence of the parties.

The suit was filed by the appellants-plaintiffs for declaration

and possession of the suit property. The suit was resisted and the

trial court framed as many as nine issues. After evidence was led

by the parties, the suit filed by the appellants-plaintiffs, was

decreed, the appellants-plaintiffs were declared owner of the suit

property and the sale deed dated 02.09.1993 was set aside.

Further direction was given for handing over possession of the suit

property and payment of mesne profit @ Rs.100/- per month.

Feeling aggrieved, the respondent-defendant filed appeal.

Alongwith the appeal, an application under Order XLI, Rule 27 CPC

was filed. The appellate court after hearing the parties on the

appeal as well as the application under Order XLI, Rule 27 CPC,

allowed the application filed by the respondent-defendant under

Order XLI, Rule 27 CPC. Thereafter the appellate court went on to

reverse findings on issues No.1 and 2 and also reverse finding on

issues No.3 and 6, however, came to the conclusion that as

application under Order XLI, Rule 27 CPC has been allowed, the

parties should be granted an opportunity to lead evidence/rebut

the same and passed the order of remand.

It is submitted by learned counsel for the appellants-

plaintiffs that the appellate court was not justified in setting aside

the impugned decree passed by the trial court for the reasons

indicated by it in the appeal. Further submissions were made that

by deciding certain issues without proper discussion and without

dealing with other issues, the matter has been remanded back to

the trial court for decision of particular issues, which procedure

adopted by the appellate court is ex-facie incorrect. It was

submitted that there was no reason for the appellate court to

remand back the matter to the trial court by setting aside the

reasoned judgment passed by the trial court and, therefore, the

judgment impugned passed by the appellate court deserves to be

set aside.

Learned counsel for the respondent-defendant supported the

impugned judgment passed by the appellate court. It was

submitted that the application filed by the respondent-defendant

under Order XLI, Rule 27 CPC was accepted by the appellate court

and for proving the said documents and judging the effect of the

said documents on the suit, the matter was in fact required to be

remanded back to the trial court and, therefore, it was rightly

done by the appellate court and the judgment impugned does not

call for any interference.

I have considered the submissions made by learned counsel

for the parties and have perused the judgment and order passed

the appellate court as well as the trial court.

The trial court after hearing the parties decided all the issues

and passed the impugned decree. In the first appeal filed by the

respondent-defendant, application under Order XLI, Rule 27 CPC

was filed. The appellate court though was justified in deciding the

application at the time of final disposal of the appeal, has

thereafter not dealt with the matter as per requirements of Order

XLI, Rule 28 or Rule 29 CPC and has not recorded as to whether

the documents permitted to be produced could be taken into

consideration by the appellate court while deciding the appeal

and/or the matter was required to be remanded back to the trial

court for the said purpose. The appellate court stopped after

passing the order allowing the application under Order XLI, Rule

27 CPC and, thereafter started considering the appeal on merits

issue wise and based on the material, which was available before

the trial court, came to the conclusion that the findings on issues

No.1, 2, 3, 4 and 6 were required to be set aside and then

recorded the following conclusion:-

"VERNACULAR MATTER OMITTED"

The procedure adopted by the appellate court, in first setting

aside the findings recorded by the trial court on issues

No.1, 2, 3, 4 and 6 based on the material available on record of

the trial court and, thereafter remanding back the matter to the

trial court based on the ground that application under Order XLI,

Rule 27 CPC had been allowed, is totally against the settled norms

for the purpose of dealing with the appeals as indicated in

provisions of Order XLI, Rule 23A to 25 CPC.

Once the appellate court had come to the conclusion that

findings of issues No.1 to 4 and 6 were required to be reversed

based on the material already available on record, no reasons

have been recorded in the impugned judgment to indicate why

thereafter the matter was required to be remanded back to the

trial court, as based on its decision on the said issues, the suit

filed by the appellants-plaintiffs was bound to be rejected.

It is not discernible from the order passed by the appellate

court as to what prevailed in the mind of the court in remanding

back the matter to the trial court.

Further once the decree passed by the trial court was

ordered to be set aside, the direction by the court only to decide

the issues No.1, 3, 4 and 6 only also appears to be without any

basis as once the issues No.1, 3, 4 and 6 were to be re-decided, it

was required of the trial court to then decide the other issues also,

which were wholly dependent on the earlier issues like issue No.5,

which pertains to grant of mesne profit. Once the finding on issue

No.1 pertaining to the title of the plaintiffs was set aside, there

was no question of grant of any mesne profit, however, the

appellate court has chosen not to remand the matter on the said

issue, which clearly indicates that the overall view of the matter

has not been taken by the appellate court.

In view of the defective determination by the appellate court

in dealing with the matter before it, once the application under

Order XLI, Rule 27 CPC was accepted by it, the judgment dated

14.03.2016 passed by the appellate court cannot be sustained.

However, the order passed by the appellate court on application

filed by the respondent-defendant under Order XLI, Rule 27 CPC

does not call for any interference.

In view of the above discussion, the appeal filed by the

appellants-plaintiffs is partly allowed. The judgment dated

14.03.2016 passed by the appellate court, remanding back the

matter to the trial court, is set aside, however, the order passed

by it on application under Order XLI, Rule 27 CPC is upheld. The

matter is remanded back to the appellate court to rehear and

decide the matter in light of the observations made hereinbefore.

The parties shall appear before the appellate court on

20.03.2017.

No order as to costs.