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Judgment
Dhrub Narayan Upadhyay, J.—This miscellaneous appeal has been preferred against the judgment dated 29.5.2001 passed by Second Additional District Judge, Giridih and decree signed on 11.6.2001 in connection with Title Appeal No. 33 of 1990, whereby the learned Additional District Judge has been pleased to set aside the judgment and decree dated 31.3.1990 and 18.4.1990 respectively passed by the then Sub Judge-I, Giridih in connection with Title (Arbitration) Suit No. 14 of 1987 and remanded back the case to the court below to decide the suit afresh on the point whether the Award in question is fit to be made rule of the court or not within 6 months from the date of receipt of the judgment of the appellate court and the parties were directed to appear before the court of Sub Judge on or before 30th June, 2001. Learned counsel appearing for the appellant has assailed the impugned judgment on the ground that the case has wrongly been remanded to decide the issues indicated in the judgment because those issues were well decided by the trial court and the findings are based on valid reasoning. It is not expected that the same issues shall again be decided and for that the case is required to be remanded to the trial court. It is further submitted that the suit brought by the plaintiffs before the trial court was also barred by law of limitation and this issue was decided by the trial court. At one point of time, the learned Additional District Judge has said that the trial court has transgressed its jurisdiction by framing various issues like a regular suit, but again the appellate court says that the trial court has not given issue-wise finding. It is further submitted that the trial court has considered all the issues involved in the suit and the same were properly addressed to. The impugned judgment of the appellate court is liable to be set aside and the judgment and decree passed by the trial court is required to be upheld.
On the other hand, learned counsel, appearing for the respondents has submitted that the appellants or the persons, who are not party to the arbitration agreement, have not filed any petition before the court challenging the Award as required u/s. 33 of the Arbitration Act (1940). In a suit, where an Award has been brought before the court to make the Award a rule of Court, the trial court has no jurisdiction to decide it as a regular suit, rather, the court will consider the issues with regard to give execution force to such Award passed by the Arbitrators.
It is further submitted that the findings of the trial court were challenged by the respondents by filing Title Appeal No. 33 of 1990 and the first appellate court, the learned Additional District Judge, was having jurisdiction to consider the issues on the basis of materials available on record and the appellate court was at liberty to give its independent findings without being influenced by the judgment passed by the trial court. If the appellate court is lacking in passing appropriate judgment and the matter is not decided afresh by the trial court, the respondents/plaintiffs shall not be made remedy less. Therefore, if the issues involved in the suit if finally decided afresh, there will be no harm and both the parties shall have one more chance to place all their cards before the trial court.
I have gone through the judgment passed by the Additional district Judge, Girdih in connection with Title Appeal No. 33 of 1990 and I have also gone through the judgment and decree of the trial court passed in Title (Arbitration) Suit No. 14 of 1987. On careful consideration of the judgment passed by the appellate court, I feel no hesitation to hold that the first appellate court has failed to discharge its responsibility in proper perspective. It is often seen that the appellate court in stead of giving independent findings on the issues involved or on the judgment under challenge, take a easier path by remanding the case to the trial court to decide it afresh. If the appellate court will remand the case in a mechanical manner without applying its mind, it would cause hardship to both the parties and the matter will again be delayed. Undisputedly the first appellate court is a court of facts and they will have to discharge their obligation in accordance with law by exercising power conferred under Order XLI of the CPC or under any other law, having appellate jurisdiction.
In the present case the learned Additional District Judge, though has given his opinion on certain issues, but in stead of affirming those issues in the judgment he has shown his disagreement with the decision of the trial court and has chosen to remand the matter back to the trial Court, which is not a good approach.
According to my view, the appellate court is expected to give reasonable finding on the issues framed by the trial court. If it think that certain issues are required to be framed and addressed to, the appellate court can frame those issues and shall be at liberty either to decide the same by it or after framing the issues, the matter may be remitted to the trial court for giving its finding on the issues so framed.
At this juncture it is desirable to refer order XLI Rules 23, Rule 23A, Rule 24, Rule 24, Rule 25:-
Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence(if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
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.
Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.
I think that the learned Additional District Judge has failed to discharge his obligation and the case has wrongly been remanded back to decide the same issues, which have already been discussed and decided by the trial court.
It is also made clear that first appellate court is having power to reject and discard the issues which are irrelevant to the suit, but the impugned judgment did not indicate as to what were the issues which are irrelevant and decided by the trial court beyond jurisdiction.
In the circumstances and considering observations made above, I feel to set aside the judgment dated 29.5.2001 passed by learned Second Additional District Judge, Giridih in connection with Title Appeal No. 33 of 1990 and the matter is remanded back to the appellate court to give reasoned judgment on all the issues, which the appellate court thinks relevant. The liberty is further given to the first appellate court to frame issues which were not framed by the trial court and to decide those issues and he shall also be at liberty, either to decide the same himself or to send back the same to the trial court for deciding those issues.
In the result, this appeal stands allowed and till further decision of the first appellate court, the proceeding in the trial court, which has commenced in view of the judgment passed by the first appellate court, shall remain stayed. The Registry of this High Court is directed to send back the L.C.R. immediately within a fortnight from today so that the matter may be decided by the appellate court within earliest opportunity, preferably within six months.