Prakash Chandra Gupta vs Sitadevi & Ors

This Miscellaneous Appeal has been filed by the defendants being aggrieved by judgment dated 18th January, 2019 passed by the IV Additional Judge to I Additional District Judge, Morena in Regular Civil Appeal No. 12/2018 remanding the matter in totality to the trial Court for its failure to address issue No.10 and 11, namely;

1- क्या प्रकरण क्रमांक 152/2000 दिनांक 21.08.2000 तथा उसकी अपील क्रमांक 11/02 मान्नीय चतुर्थ अपर जिला न्यायाधीश मुरैना, दिनांक 23. 11.2006 निराकृत हो जाने के पश्चात् यह प्रकरण प्रचलन योग्य नहीं है?

क्या विवादित संपत्ति एवं दुकान के संबंध में मान्नीय चतुर्थ अपर जिला न्यायालय मुरैना के प्रकरण क्रमांक 7ए/2002 परिवर्तित प्रकरण क्रमांक 3ए/08 मान्नीय द्वितीय अपर जिला न्यायाधीश मुरैना के निर्णय दिनांक 21.10.2008 के पश्चात् यह प्रकरण प्रचलन योग्य नहीं है?श्

It is submitted that these issues are pure questions of law and trial Court has categorically recorded a finding that it is not adverting to these issues because appeal/revision is pending before superior court against such judgments and since these issues have an impact of res judicata and they being purely legal issues they could have been adverted to by the First Appellate Court and could have been decided in the first instance.

It is pointed out that as per the provisions contained in Order 41 Rule 23-A of Code of Civil Procedure this whole-sole remand of the case reflects non-application of mind on the part of the learned IV Additional Judge to I Additional District Judge Morena. It is submitted that in fact, plaintiff had filed a suit seeking declaration of ownership and possession on the suit property and such issues could have been adverted to by the First Appellate Court itself.

Learned counsel for the appellant has placed reliance on the judgment of High Court of M.P. in the case of Murari Lal Vs. Ram Kumar Ojha & Anr. as reported in 2015(1) M.P.L.J. 243, recording a finding that Appellate Court can remand the matter only when twin requirements are fulfilled namely; (i) Disposal of case by trial Court otherwise than on a preliminary point, and (ii) decree is reversed in appeal and retrial is considered necessary. It is submitted that such exigencies were existing in the present case and, therefore, there was no justification in ordering for retrial.

Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Zarif Ahmad (Dead) through legal representatives & Another Vs. Mohd. Farooq as reported in (2015) 13 SCC 673, wherein it has been held that ordinarily matter is not to be remanded if trial court has followed all the steps required for a proper trial. Reliance has been placed on para 13, which reads as under:

"13. No doubt, Section 107 CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 Order 41 CPC provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is not a healthy practice to remand a case to the trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, should a case be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case."

Learned counsel for the respondents on the other hand submits that no prejudice is going to be caused to the appellant, inasmuch as these judgments and decrees are required to be exhibited and such evidence could not have been taken by the First Appellate Court.

Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Narayanan Vs. Kumaran & Others as reported in (2004) 4 SCC 26, wherein para 17 discussing Order 43 Rule 1 clause (u) reads as under :

"17. 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."

Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in the case of J. Balaji Singh Vs. Diwakar Cole and others as reported in (2017) 14 SCC 207, wherein in para 22, it has been noted as under :

"22 . We are also unable to agree with the High Court when it reversed the finding of the first appellate court, insofar as it pertained to the application filed by the plaintiff under Order 41 Rule 27 of the Code. In our opinion, no fault could be found in the finding of the first appellate court on this issue for the following reasons:

22.1. First the additional evidence sought to be filed at the first appellate stage was held to be material and necessary for proper adjudication of the suit; and second, the reasons as to why it could not be filed during the trial also found acceptance to the first appellate court.

22.2. In order to enable the parties to have fair trial in civil suit and with a view to do substantial justice, the first appellate court, in our view, rightly allowed the plaintiff to file the additional documents in appeal which satisfied the requirements of Order 41 Rule 27 of the Code."

After considering the rival submissions, it is apparent that in the case of J.Balaji Singh (supra) it was a case where plaintiff had filed an application under Order 41 Rule 27 of the Code and since additional evidence was filed at the first appellate stage, therefore, suit was remanded for proper appreciation and adjudication of the suit but in the present case suit has been remanded without satisfying the requirements laid down in para 14.1 of this very judgment, wherein it has been held that Order 41 Rule 23 enables the appellate court to remand the case to the trial court when it finds that the trial court has disposed of the suit upon a preliminary point. Similarly, in para 14.2, it has been laid down that so far as Rule 23-A is concerned, it enables the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court.

Thus, remand will lie under Order 41 Rule 23 or under Order 41 Rule 23-A of the Code on the conditions laid down in para 14.1 and 14.2 in the case of J.Balaji Singh (supra).

As far as exercise of power under Order 41 Rule 23 of the Code is concerned, it is apparent that such eventualities requiring remand under Order 41 Rule 23 of the Code are not available in the present case, as all other issues have been decided on their own merits after proper appreciation of the evidence. As far as application under Order 41 Rule 23-A is concerned, First Appellate Court has failed to justify such remand by giving cogent reasons, as to why issue No.10 and 11 allegedly not decided by the trial court could not have been decided by the First Appellate Court. In absence of such evaluation and appreciation of evidence or material on record, this Court is of the opinion that impugned judgment deserves to be set aside, as this appeal gives rise to substantial question of law as to the facts and circumstances of the case as to whether issue of res judicata could have been decided by the First Appellate Court on the basis of material already available on record or not.

Therefore, the judgment cited by the learned counsel for the respondents itself when provides for guidelines for remand and apparently, such guidelines for remand have not been followed by the learned First Appellate Court, it judgments deserves to be set aside and is set aside. Matter is remanded to the first appellate court to decide the First Appeal on its own merits.