Smt. Sandhya Mishra vs Stat of Madhya Pradesh & others

This miscellaneous appeal filed under order 43 Rule 1(u) of

Code of Civil Procedure, 1908 is directed against the order

dated 03.05.2008 passed in Civil Appeal No.11-A/2007 by the

First Additional District Judge, Damoh arising out of the

judgment and decree dated 05.11.2007 passed in Civil Suit

No.45-A/2007 decided by Vth Civil Judge, Class II, Damoh.

Brief facts, necessary for adjudication of this appeal, are

that the respondent No.1/plaintiff filed a civil suit for

declaration and possession. The defendant No.1 filed his

written statement and denied the averments of the plaint.

The trial Court framed the issues, recorded the evidence

and heard the rival contention of the parties. By

judgment and decree dated 05.11.2007, the trial Court

recorded a finding that plaintiff could not establish that

he was the owner of the suit land. However, another

finding was recorded by the trial Court that the Will in

favour of defendant No.1 could not be proved by him.

Since the plaintiff''s title was not proved, the suit was

ultimately dismissed.

Aggrieved, the plaintiff filed the Civil Appeal No.11-

A/2007. The lower appellate Court set aside the findings

of the trial Court on issue No.1. The Court upheld the finding of the trial Court on issue No.2. The lower

appellate Court set aside the judgment and remitted the

matter back to the trial Court in purported exercise of

power under Order 41 Rules 23 & 25 of CPC.

Shri Pranay Verma, learned counsel for the

appellant contended that the lower appellate Court has erred in holding that since present

appellant did not file any counter/objection at

appellate level, no interference can be made on

the issue which was decided against the present

appellant. The attention of this Court is drawn

on the issue No.2 which is related to legality and

genuineness of the Will dated 05.01.1998. Since

the present appellant is claiming right/title on

the basis of this Will, Shri Pranay Verma submits

that the outcome of this issue was very crucial

for the present appellant. Since the civil suit was

dismissed, there was no occasion for the present

appellant to file any appeal/objection against the

judgment and decree decided against the

plaintiff.

Shri Pranay Verma further submits that the remand order is not covered by any of the rules made under

Order 41 of CPC. He relied on a judgment of Supreme

Court in this regard. Shri Verma further contended that

lower appellate Court in first portion of its judgment gave

a finding regarding title and possession in favour of the

plaintiff whereas in the operative portion of the judgment, remitted the matter back for recording

evidence and taking a fresh decision in relation to issue

No.1. He urged that the said findings are mutually

inconsistent and cannot be permitted to stand.

Shri Atulanand Awasthi, learned counsel for the

respondent No.1/plaintiff supported the impugned judgment

dated 03.05.2008 and contended that in absence of preferring

appeal or objection, against the judgment and decree of the trial Court, it was not open to the present appellant to raise

oral objection regarding issue No.2 framed by the trial Court.

In my view, this point is is no more res integra. In

2003 (9) SCC 606 (Banarasi and others Vs. Ram

Phal), the Apex Court held as under:

'' 10. The CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:- (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent; (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.''

[Emphasis supplied]

A simple reading of this judgment shows that the

present case is covered by situation (ii) mentioned in

Para 10 of the judgment of Supreme Court. In Para 11,

the Apex Court, in no uncertain terms, made it clear that

after amendment in CPC, it is not necessary to take any

cross objection to assail any finding adverse to him

because decree is completely in his favour and he may support the decree without cross objection. As per the

explanation inserted by way of amendment, he may raise

objection while answering an issue or while dealing with

an issue. In the light of this judgment, I find substance in

the argument of Shri Pranay Verma that Court below has

erred in not entertaining the oral arguments of the

appellant in relation to issue No.2. For this reason, the

order impugned is liable to be interfered with.

The judgment of lower appellate Court shows that in

Para 16, a clear findings is given that the land in question

is an ancestral land and plaintiff''s title is established. The

issue framed by the trial Court on 19.01.2007 is in

relation to title and possession both. In Para 37 of the

impugned judgment, the appellate Court opined that the

findings given by the trial Court in relation to issue No.1

is incorrect. Hence, the matter was remitted back to the trial Court to decide the Issue no.1 on the basis of

evidence.

Shri Atulanand Awasthi supported the impugned

judgment and contended that if fresh evidence is

recorded by the trial Court, it will not cause any

prejudice to the appellant.

In my view, the ancillary question is : whether the

Court below was justified in remitting the matter back in

exercise of power under Order 41 Rule 23 or 25 of CPC ?

I have carefully gone through various sub-rules of

Order 41 of CPC. In my considered opinion, in the facts

and circumstances of the case, neither Rule 23 nor Rule

25 of Order 41 of CPC is attracted/applicable. In absence

thereto, the remand order cannot be countenanced.

This Court recently in M.A. No.2644/2004 (Suresh

Prasad Vs. M.P. Housing Board & others) dealt with the

scope of Order 41 Rules 23 and 25 of CPC. This Court

opined as under:

'' 12. In the present case, since the decree was not passed by the trial court on preliminary point/ issue, Rule 23 is clearly inapplicable. Rule 25 aforesaid, in no uncertain terms provides that in order to determine any question of fact which appears to the appellate court essential for right decision of the suit upon the merits, the appellate court may frame necessary issues and refer the same for trial to the trial court. The additional evidence may be required to be examined. The trial court, in turn, shall return the evidence to the appellate court together with its findings and reasons. Thereupon, the appellate court can pass its judgment.

In the light of aforesaid, it is clear like noon-day that in the present case when lower appellate court found that it is necessary to determine a question of fact, namely, exact location of land, it should have exercised the powers envisaged in Rule 25 of Order 41. It has clearly erred in remitting the matter on wholesale basis. Thus, I find substance in the point raised by the appellant.

As analyzed above, the lower appellate court has erred in remanding the matter. Accordingly, the impugned judgment dated 09.07.2004 is quashed and set aside. The matter is remitted back to the lower appellate court to pass necessary order under Rule 25 of Order 41 CPC. The lower appellate court shall fix time limit within which the trial court shall take necessary steps, record evidence etc. and submit its findings before the lower appellate court. The parties shall appear before the lower appellate court on 20.09.2017. The Registry of this court shall send the original record to the lower appellate court along with copy of this order.''

In view of specific language of Order 41 Rule 25 of CPC, the appellate Court could have framed the

necessary issue/question, if such issue was not framed by

the trial Court. If issue was framed but proper evidence

is not recorded and it is felt necessary by the appellate

Court to record evidence, the appellate Court should

have kept the appeal pending and remitted the matter

back to the trial Court to frame issue/record evidence as

the case may be. The wholesale remand to the trial Court

is not justifiable in the teeth of Rule 25 of Order 41.

As analyzed above, the appellate Court has erred in

remanding the matter. Accordingly, the impugned order

dated 03.05.2008 is set aside. The matter is remitted

back to the lower appellate Court to pass necessary

orders keeping in mind the aforesaid observations of mandate of Rule 25 of Order 41 of CPC.

The appeal is allowed to the extent indicated above.