Rika Ram vs Urja Ram and Others

Dr. Vineet Kothari, J.—This Misc. Appeal filed by the defendants is arising out of the order dated 19.03.2015 passed by the learned Additional District Judge No. 6, Jodhpur Metropolitan, Jodhpur in Civil First Appeal No. 06/2013 "Urja Ram and Ors. v. Rika Ram" by which, the learned Additional District Judge No. 6, Jodhpur Metropolitan, Jodhpur had remanded the Civil Original Suit No. 12/2007 (70/2007) [Rika Ram v. Urja Ram and Ors.], seeking decree of specific performance of the contract, to the learned Trial Court.

The suit for specific performance of the contract filed by the plaintiff was decreed by the learned Trial Court on 22.01.2013. However, on appeal by the defendants, the said judgment and decree dated 22.01.2013 was set aside and the suit was remanded back to the learned Trial Court directing the Trial Court to decide the suit again after framing of necessary issues and after taking necessary evidence to be led by the parties.

The learned counsel Mr. Sugan Mal Parihar appearing for the appellant-plaintiff has relied upon the following decisions:-

"(1) P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., AIR 2002 SC 771 : (2002) 5 JT 5 : (2002) 1 SCALE 447 : (2002) 2 SCC 686 : (2002) 1 SCR 586 : (2002) AIRSCW 417 : (2002) 1 Supreme 357 ;

(2) R.S.R.T.C. and Anr. v. Haridwari Lal Sharma reported in 2014 (1) Civil Court Cases 802 (Rajasthan)"

The learned counsel Mr. Sugan Mal Parihar submitted that without reversing the findings of the learned Trial Court issue-wise, the learned Appellate Court could not have remanded back the suit for fresh trial and, therefore, the impugned order dated 19.03.2015 deserves interference of this Court and this misc. appeal deserves to be allowed.

On the other hand, the learned counsel Mr. V.D. Gaur on behalf of Mr. O.P. Mehta submitted that the defendants had denied even the execution of the agreement dated 10.09.1998 and claimed by filing the written statement that they had taken Rs. 28,000/- as a loan from the plaintiff by mortgaging the land and, therefore, without establishing the fact of execution of the agreement in question and without proving its validity, which were the mixed questions of facts and law in the present suit whereby, the plaintiff claimed that the agreement was executed in the year 1998 but on denial of the defendants to execute the sale deed, he has filed the suit in question in the year 2007. The learned counsel also submitted that the learned Trial Court had erred in decreeing the suit of the plaintiff whereas, the learned Appellate Court had justifiably remanded the case back to the learned Trial Court for deciding the suit after holding a fresh trial by framing necessary issues about the nature of agreement and readiness and willingness of the plaintiff and leading of the evidence by the parties.

The relevant reasons given by the learned Appellate Court for remanding the suit to the learned Trial Court are quoted herein below for ready reference:-

The judgments referred by the learned counsel for the plaintiff-appellant are off the mark and do not apply to the facts of the present case since the Hon''ble Supreme Court found in the case of P. Purshottam Reddy (supra) found that the conditions necessary for production of additional evidence set down under Order 41 Rule 23 and 23-A must be satisfied and the High Court had erred in setting the decree of specific performance and remanding the case back to the Trial Court. Similarly, in the case of RSRTC v. Haridwari Lal Sharma (supra), it was held by this Court that the Appellate Court has power to remand the case in absence of necessary issues without even recording any finding for reversing the findings of the Trial Court. This Court had also held that the conditions of Order 41 Rule 23 were required to be satisfied whereby, the learned Trial Court had decreed the suit on preliminary issues.

Having heard the learned counsels for the parties and having perused the material placed on record, this Court is of the opinion that, whether the form and substance of the agreement in question itself has been challenged and as to whether the amount of Rs. 28,000/- was taken as a loan by putting the land in question in mortgage or the defendants had agreed to sell the land in question by entering into an agreement to sell, these questions are to be decided by the learned Trial Court by framing necessary issues and by giving issue-wise findings. The learned Trial Court is also required to test the readiness and willingness of the plaintiff to perform his part of the contract. In view of this, the learned Appellate Court cannot be said to have erred in remanding the case back to the Trial Court for fresh decision after framing of necessary issues and after holding a fresh trial in the suit. Therefore, no interference is called for in the impugned order and the present misc. appeal filed by the plaintiff-appellant deserves to be dismissed having no force at all.

Accordingly and in view of the above, the present misc. appeal filed by the appellant-plaintiff-Rika Ram S/o Gokul Ram is dismissed. No costs. A copy of this order be sent to both the Courts below and to the parties concerned forthwith.