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Judgment
Anil Kumar, J.—Heard Sri Yaduvansh Mani Singh Yadav, learned Standing Counsel for the petitioner, Sri R.P. Singh for the respondents and perused the record.
Facts, in brief, of the present case are that after enforcement of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as an ''Act''), a notice under Section 10(2) of the Act has been issued to one Sri Akhileshwari Prasad Verma holding him to be tenure holder in respect to the property in dispute on 18.9.1978 and the matter was decided by the prescribed authority on 27.6.1980 and a land measuring 268-340 Acre in terms of irrigated land has been declared as surplus. Against the said order Sri Akhileshwari Prasad Verma co-tenure holder had filed a separate appeal before the appellate authority, who by an order dated 29.11.1980 remanded the matter to the prescribed authority with the following findings:--
"As a result of my findings these three appeals are hereby allowed. The judgment and order dated 27.6.1980 passed by the learned prescribed authority is hereby set aside. The case is remanded to the learned Prescribed Authority to decide the case afresh in the light of the observations made above after issuing fresh notices.
The parties are directed to appear before the prescribed authority on 18.12.1980."
Aggrieved by the order dated 29.11.1980 passed by the appellate authority, State of U.P. Through Collector filed Civil Misc. Writ Petition No. 3167 of 1981(State of U.P. v. Akhileshwari Prasad and others), same was dismissed by an order dated 20.8.1981, the operative portion of the order is quoted as under:--
"As such the prescribed authority will decide the case without being influenced by the observations made by the Additional District Judge. The Prescribed Authority will decide in the lights of the parties independent of such deservation. The writ petition otherwise has not merits and under the above observation is dismissed in limine."
In addition to above said fact, aggrieved by the said order dated 29.11.1980 a Writ Petition No. 3567 of 1981 (Vijay Prasad Verma and others v. State of U.P. And others) has also filed, the same was allowed by means of order dated 29.11.1982, the relevant order is quoted below:--
"It is well settled that co-tenancy rights can be acquired even in a sirdari land by estoppel and acquire sconce. Acceptance of persons as co-tenure holders does not amount of transfer vide ( Gaya Singh Vs. Deputy Director of Consolidation, Etah and Others, AIR 1977 All 54 ), a Division Bench decision. As the decree was prior to 24.1.1971 it was not open to the authorities under U.P. Imposition of Ceiling on Land Holdings Act, 1961 to ignore it except on the basis of a finding under explanation 1 or explanation 2 to section 5(i) of that Act. The learned district Judge has not given any finding that these explanations were attracted to the case. On the other hand, he has taken the view that these explanation were not material. Indeed, in a case of co-tenance these explanation would not be very relevant in as much as the possession of one co-sharer is taken to be constructive possession on behalf of other co-sharers. Accordingly the benefit of the decree of 1967 could not be denied to the petitioners.
In the result, the writ petition is allowed and only the finding of the additional District Judge, in the judgment dated 29.11.1980 that the petitioners were no co-sharers in the land and that the land would be deemed to be held only by the persons whose names recorded in the patta is hereby quashed. The rest of the findings and directions contained in the appellate court''s judgment shall remain unaffected. No order as to cost."
Thus, the matter went to prescribed authority for consideration, in the said matter Sri Yogesh Chandra moved an application for substitution on the ground that after the death of Sri Akhileshwari Prasad Verma he may be substituted as his legal heir on the basis of will deed dated 28.6.1988 in which an order dated 21.1.1999 has been passed.
Aggrieved by the order dated 21.1.1999 passed by prescribed authority Vijay Prasad and others filed an Appeal No. 47 under Section 13 of the Act before opposite party No. 1/The Additional Commissioner(Judicial) Devi Patan Mandal, Gonda, allowed by order dated 3.6.2000, setting aside the order dated 21.1.1999 and remanded the matter to prescribed authority to decide a fresh, under challenge in the present writ petition.
In order to decide the controversy involved in the present case, it is relevant to go through the provisions as provided under Order 41 Rule 23 CPC, it is appropriate to go through the said provisions, which reads as under:--
"Order XLI Rule 23 of the Code reads thus:
"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, which 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 all just exceptions, be evidence during the trial after remand."
Hon''ble the Apex Court in the case of 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 , while considering the scope of order 41 Rule 23 and Rule 23-A CPC held 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 23A in Order 41 of the Code of Civil Procedure by 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 in as much 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 therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the 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 23A 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, AIR 1965 SC 364 : (1964) 7 SCR 267 , 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 11 Rule 31 of the 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 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided."
In the case of Smt. Bachahan Devi and Another Vs. Nagar Nigam, Gorakhpur and Another, AIR 2008 SC 1282 : (2008) 2 CTC 790 : (2008) 152 PLR 5 : (2008) 2 SCALE 224 : (2008) 12 SCC 372 : (2008) AIRSCW 4814 : (2009) AIRSCW 117 : (2008) AIRSCW 1326 : (2008) 1 Supreme 756 : (2008) 4 Supreme 245 , Hon''ble the Apex Court held as under:--
"9 Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point 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 additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows:
"As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon''ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word ''may'' has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings relating to said legal and factual issues after itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon''ble High Court is fully applicable in the present matter."
Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others Vs. Kurimeti Ayyappa, AIR 1974 SC 1702 : (1975) 4 SCC 458 : (1974) 3 SCR 595 : (1974) 6 UJ 317 , where it was inter-alia observed in para 5 as follows:
"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopal Nath Shukul Vs. Sat Narain Shukul ."
In the case of Municipal Corporation, Hyderabad Vs. Sunder Singh, AIR 2008 SC 2579 : (2008) 7 JT 247 : (2008) 8 SCALE 375 : (2008) 8 SCC 485 : (2008) AIRSCW 4335 , Hon''ble the Apex Court held as under:--
"Order XLI Rule 23 of the Code reads thus:
"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, which 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 all just exceptions, be evidence during the trial after remand."
Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
Order XLI rule 23A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI Rule 23 of the Code."
The case of Maya Devi (dead) through Lrs. Vs. Smt. Raj Kumari Batra (dead) through Lrs. and Others, (2011) 111 CLT 118 : (2010) 9 JT 602 : (2010) 9 SCC 486 : (2010) 10 SCR 1113 ., Hon''ble the Apex Court (relevant para Nos. 22 and 28) reads held as under:--
"The juristic basis underlying the requirement that Courts and indeed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this Court. In M/s. Hindustan Times Limited Vs. Union of India and Others, (1998) 1 JT 18(1) : (1998) 1 SCALE 34 : (1998) 2 SCC 242 : (1998) 1 SCR 4 : (1998) 1 UJ 368 : (1998) AIRSCW 352 : (1998) 1 Supreme 174 the need to give reasons has been held to arise out of the need to minimize chances of arbitrariness and induce clarity.
It is in the light of the above pronouncements unnecessary to say anything beyond what has been so eloquently said in support of the need to give reasons for orders made by Courts and statutory or other authorities exercising quasi judicial functions. All that we may mention is that in a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. There is nothing like a power without any limits or constraints. That is so even when a Court or other authority may be vested with wide discretionary power, for even discretion has to be exercised only along well recognized and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity."
Thus, keeping in view of the abovesaid facts and the circumstances of the case, I do not find any illegality or infirmity in the impugned order dated 3.6.2000 passed by opposite party No. 1/The Additional Commissioner(Judicial) Devi Patan Mandal, Gonda.
For the foregoing reasons, the writ petition is dismissed with the direction to prescribed authority to decide the matter in issue in accordance with law after hearing learned counsel for the parties concerned, expeditiously, say, within a period of four months from the date a certified copy of this order is produced before him.
Further for a period of four months or till the decision taken by prescribed authority in the matter in issue whichever is earlier, parties are directed to maintain status quo as exists today.
(C.M. Application No. 17121 of 2015 for impleadment)
Heard Sri D.S. Yadav, learned counsel for the applicants, Sri Yaduvansh Mani Singh Yadav, learned Standing Counsel for the petitioner, Sri R.P. Singh for the respondents and perused the record.
As per undisputed facts of the present case are that in respect to land in question a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 has been issued to the tenure holders, who had filed their objections and since then the matter in question under litigation in which lastly and order dated 3.6.2000 has been passed which is under challenge in the present writ petition.
In the instant matter, by means of present application the persons in whose favour patta has been granted by Sub-Division Magistrate, Nanpara, Bahraich being surplus land has moved an application for impleading them as respondent on the ground that they are necessary and affected parties in the litigation in question.
After hearing learned counsel for the parties and going through the record, the position which emerge out is to the effect that litigation in question as started in pursuance to the notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act in the year 1978 and since then matter is sub judiced one or other courts and an interim injunction has been granted by the courts concerned. It also evident from the perusal of the record that also the lease/patta has been granted in favour of the persons, who have moved an application for impleadment by the Sub-Division Magistrate, Nanpara, Bahraich treating the land in question as surplus land but actual possession has not been given to them. Further , once the matter is still to be decided by the prescribed authority that whether the land of the petitioner is surplus land or not subject to the provisions of U.P. Imposition of Ceiling on Land Holdings Act on merit then in that circumstances at this stage, I do not feel it appropriate that the application in question may be allowed keeping in view the fact that the writ petition filed by the State has been dismissed today and the prescribed authorities is directed to decide the matter afresh after giving opportunity of hearing to the parties concerned.
The application in question is rejected at this stage with the observation that lease/patta which granted to them shall be subject to outcome of the litigation in question by the competent authority.