Smt. Ramjanki vs Smt. Dhanni Bai and Others

Bela M. Trivedi, J.—With the consent of the learned counsels for the parties, the appeal is finally decided at the admission stage. The present appeal filed under Order XLIII Rule 1 of CPC arises out of the judgment & order dated 13.01.2011 passed by the Additional District Judge No. 2, Bundi (hereinafter referred to as "the appellate court") in Civil Regular Appeal No. 27/2010, whereby the appellate court has set-aside the judgment & decree dated 21.07.2010 passed by the Civil Judge (J.D.) Lakheri, District Bundi (hereinafter referred to as "the trial court") in Civil Suit No. 4/2002, and has remanded the matter to the trial court for deciding the suit afresh after impleading the third party Shri Peeru Lal as the party defendant in the suit.

The short facts giving rise to the present appeal are that the appellant-plaintiff had filed the suit seeking specific performance of the agreement dated 06.07.1994 executed by the original-defendant Shri Babu Lal. The original-defendant Shri Babu Lal had resisted the suit by filing the written statement. The said defendant Babu Lal expired during the pendency of the suit and his legal heirs were brought on record. The trial court after framing the issues from pleadings of the parties and after considering the evidence on record, decreed the suit of the appellant-plaintiff vide the judgment & decree dated 21.07.2010. Being aggrieved by the said decree, the respondents-defendants had filed the appeal before the appellate court. The appellate court without raising points of determination or without recording any findings on the issues framed by the trial court, held that the Shri Peeru Lal, brother of the original-defendant was the joint owner of the land in question, and therefore, he was the necessary party in the suit. The appellate court, therefore, set-aside the judgment & decree passed by the trial court and remanded the case to the trial court for deciding afresh after impleading the said Peeru Lal as the party defendant in the suit.

It has been sought to be submitted by the learned senior counsel Mr. Kamlakar Sharma, for the appellant that the appellate court could not have remanded the case to the trial court under Order XLI Rule 23-A, without reversing the decree and without recording any finding on the issues/points involved in the appeal. Mr. Sharma also relied upon the decisions of the Apex Court in case of P.C. Varghese Vs. Devaki Amma Balambika Devi and Others, and of this Court in case of Dhara Singh Vs. Fateh Singh and Others, , to submit that the decree for specific performance cannot be denied to the plaintiff purchaser, merely because the property was not partitioned. However, the learned senior counsel Mr. N.K. Maloo, for the respondents, submitted that the appellate court having rightly held that the land in question being jointly owned by the original-defendant Babu Lal and his brother Peeru Lal, the suit could not have been decided without impleading Peeru Lal as the party-defendant in the suit. He submitted that as per the settled legal position, no decree for specific performance in respect of joint family property could be passed without impleading the coparcener.

At the outset, it is required to be noted that the appellant had earlier filed the second appeal being No. 109/2011, challenging the impugned judgment passed by the appellate court, however the objection having been taken by the learned counsel for the respondents regarding the maintainability of the second appeal, the appellant was permitted to convert the said second appeal into Civil Misc. Appeal as per the order dated 06.07.2012. Under the circumstances this appeal was treated as having been filed under Order XLIII Rule 1. It is also required to be noted that suit of the appellant-plaintiff was decreed by the trial court otherwise than on the preliminary issue, and therefore, the impugned order was passed by the appellate court remanding the case to the trial court under Order XLI Rule 23-A of CPC.

So far as the powers of appellate court to remand the case are concerned, the Apex Court in case of P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., has held in para 10 as under:-

The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the CPC by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction u/s 151 CPC to order a remand if such a remand was considered preeminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided.

In view of the above stated legal position, the powers of remand could be exercised by the appellate court either under Rule 23 or under Rule 23-A of Order XLI. While Rule 23 could be exercised when the suit is disposed of by the trial court on a preliminary issue, Rule 23A could be invoked when the suit is disposed of otherwise than on preliminary point and when the decree is reversed in appeal, and the retrial is found necessary by the appellate court. In the instant case, from the submissions made by the learned counsels for the parties, and to the impugned order passed by the appellate court, it transpires that the appellate court has remanded the case to the trial court, without reversing the findings recorded by the trial court on the issues framed by the trial court and without finding the retrial necessary. The appellate court does not appear to have remanded the case under Rule 25 inasmuch as it has neither framed any additional issue nor called for any additional evidence from the trial court.

It is also pertinent to note that the appellate court has also not raised the point for determination as contemplated under Order XLI Rule 31 of CPC. It has simply directed to implead Shri Peeru Lal as the party-defendant in the suit and directed the trial court to frame additional issue and record additional evidence on such issue. Such an order passed by the appellate court being illegal and not in consonance with the scope of remand laid down by the Apex Court, the impugned order deserves to be set-aside. In that view of the matter, without expressing any opinion on the merits of the case, the impugned order dated 13.01.2011 passed by the appellate court is set-aside and the appellate court is directed to decide the appeal on merits and in accordance with law. The appeal is, therefore, allowed.