Ram Kanwar and Others vs Balbir and Others

Rajiv Narain Raina, J—A rather piquant but interesting question has arisen in this matter with the presentation of a regular second appeal against an order of remand passed by the court of first appeal under Order XLI Rule 23-A of the Code of Civil Procedure, 1908 (for short ''the Code''). Since the case was remanded to the trial Court by the court of first appeal, no decree was drawn or was required to be drawn since there was no formal expression of an adjudication by the appeal court which conclusively determined the rights of the parties with regard to any of the matters in controversy in the suit, as is required to be qualified by the definition of ''decree'' in Section 2(2) of the Code. Sub-sections (2) and (3) of Section 2 which define ''decree'' and ''decree-holder'' are reproduced for ready reference:--

"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1[***] section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;

(3) "decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made;"

When the appeal was presented, the office raised an objection that since there was no decree, the regular second appeal did not lie. Faced with the office objection, defendant-appellants filed an application under Section 151 of the Code in the court of first appeal praying that a decree be drawn up in order to render the appeal in the High Court maintainable against the decree. The learned Additional District Judge, Gurgaon, appears to have been placed in a predicament as to what to do with the application there being no provision in the Code in his sight responding to the situation. In the circumstances, the learned lower appellate Court thought it fit to exercise its jurisdiction to "advance substantive justice" to both the parties by allowing the application and directing that the decree-sheet be prepared.

The question presently engaging court is whether the procedure followed was legally permissible and the result capable of being approved by a superior court. Albeit, the order was passed on 19th February, 2013 after the respondents were heard through counsel. It is also noted that the respondents have not called in question the order dated 19th February, 2013 in any separate proceedings. Both the parties appear to be satisfied with the dispensation handed down by the Judge to tide over the obstacle. However, it is well settled that parties by consent cannot confer jurisdiction on court which it does not possess.

In order to explain the legal position, Mr. Sanjay Vij learned counsel appearing for the respondents, has armed his submissions with the provisions of Sections 100 and 104 of the Code and has commended to Court that the order in appeal remanding the case to the trial court was not a decree and in fact no decree was required to be drawn as per law. He has drawn my attention to the provisions of Order XLIII Rule 1(u) of the Code, which refers to Section 104 of the Code and deals with appeals from orders. Clause (u) of Rule 1 of Order XLIII reads as follows:--

"(u) an order under rule 23 [or rule 23-A] or order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court."

Rule 23 and Rule 23-A of Order XLI of the Code deal with remand of cases and lay down where an appeal would lie from the decree of an appellate court. Since Rule 23-A has come into play in this matter, it is noticed as under:--

"23-A. Remand in other cases.--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on 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.]"

In support of his contention that an RSA is not maintainable against the remand order, Jegannathan Vs. Raju Sigamani and Another, AIR 2013 SC 3788 : (2012) 114 CLT 833 : (2012) 3 CTC 410 : (2012) 3 RCR(Civil) 233 : (2012) 4 SCALE 228 : (2012) 5 SCC 540 , where the issue as has arisen in this case came for adjudication. The Supreme Court after noticing the provisions of Order XLIII of the Code held that an order of remand based upon Rule 23-A of the Code is amenable to appeal under Order XLIII Rule 1(u) of the Code. In concluding the legal proposition, the Supreme Court relied upon its earlier decision in Narayanan Vs. Kumaran and Others, (2004) 98 CLT 286 : (2004) 3 CTC 130 : (2004) 5 JT 358 : (2004) 3 SCALE 322 : (2004) 4 SCC 26 : (2004) 3 SCR 11 : (2004) AIRSCW 4336 : (2004) 4 Supreme 12 , wherein the Court had laid down that the constraints of Section 100 of the Code continue to be attached to an appeal under Order XLIII Rule 1(u). Therefore, the appeal under Order XLI Rule 1(u) can only be heard on the ground on which a second appeal can be heard under Section 100 of the Code, that is, on a substantial question of law. Since it is well settled that right of appeal is a creation of statute, appeals have to be filed in the manner provided in the Code and there can be no departure since the question rests on the root of jurisdiction exercised by the High Court amongst the various jurisdictions it exercises either in first appeal from original decree, second appeal from appellate decree, first appeal from order, second appeal from order etc. In the circumstance, Mr. Vij argues that the learned Additional District Judge, Gurgaon, in his order dated 19th February, 2013 extended the bounds of his jurisdiction beyond breaking point and he should not have taken resort to principles of substantive justice to allow the prayer for drawing up the decree for the asking. I agree with Mr. Vij that this has resulted in an obfuscation of jurisdiction at the hands of the learned Additional District Judge, Gurgaon amidst the legal confusion faced by him without proper guidance and assistance coming from the appearing counsel whose duty it was to clarify the position by citing the law on the subject matter matching the assistance given to this court by Mr. Vij to resolve the issue in accordance with law.

The decree prepared by the lower appellate court as a consequence of the order passed on 19th February, 2013 has no legal sanctity and is not binding on the parties and is liable to be Ignored. The proper remedy which Mr. Achint should have taken was to file, in the present case, a Second Appeal from Order [SAO] against the remand order under Section 23-A of the Code. The RSA as presented is patently not maintainable.

Having come to the conclusion that the order dated 19th February, 2013 cannot be accepted as a legal precursor to the decree drawn under the order, the order is held not sustainable in the eyes of law and neither the decree, which is therefore declared non est in view of the legal position obtaining in the Code as explained to this Court with the help of case law.

However, this does not mean that the appellant when feeling aggrieved would not have his recourse to legal remedy provided against the order of remand on merits and with the least inconvenience. Without doubt, he may agitate by resort to proper procedure and jurisdictions set in the Code; not in regular second appeal but by way of a Second Appeal from Order. It is also seems without doubt that a regular, second appeal can be quite easily converted into an SAO without presenting any jurisdictional difficulty by permitting the defendants/appellants to convert the RSA into an SAO since the Court Fee stands paid probably more than what is required to be affixed on an SAO.

For the foregoing reasons, the second appeal presented would be treated by conversion as an SAO. Mr. Achint appearing for the appellants would, however, present a fresh paper book in the form of SAO and the office would entertain the same and keep the two paper books tagged together. After the needful is done and any other objection, if found and removed, then registry to list the SAO for hearing. It is ordered that the proposed SAO, if filed within 21 days from the date of receipt of this order, would relate back to date of presentation of the RSA to save limitation or any other complication that may arise.

In case the Court Fee paid on the RSA is more than what is required to be affixed in presentation of an SAO, it is found just and fair that the difference would be refunded to the appellants in accordance with law for which necessary certificate be issued. Copy of this order be sent to the learned Additional District Judge, Gurgaon who passed the order for future reference and guidance.

List on 19.9.2015.