Sucha Singh vs Bhalwan

V.S. Aggarwal, J.—The present revision has been filed by Sucha Singh, hereinafter called "the petitioner", directed against the order of the learned Additional District Judge, Sangrur, dated 15.6.1998. By virtue of the impugned order, the learned trial Court had accepted the application of the respondent setting aside the judgment and decree of the trial Court. The case was remanded to the trial Court at Sunam to consider the evidence produced by the parties and decide the same afresh.

The relevant facts are that the petitioner had filed a Civil Suit for possession of the suit land in January, 1981 against the respondent. He claimed himself to be the owner of the land in question. The suit was contested by the respondent on various pleas. The respondent had set up his own ownership and has claimed that he is owner by adverse possession. From the pleadings of the parties, the trial Court had framed 11 issues. The parties were afforded opportunity to lead evidence. On 10.3.1987 the learned trial Court had decreed the suit. The respondent preferred an appeal before the learned Additional District Judge at Sangrur.

During the pendency of the appeal, an application was filed for amendment of the written statement in the Court of learned Additional District Judge. The learned Additional District Judge allowed the application for amendment of the written statement. Consequently, on the basis of the amended pleadings, five additional issues were framed. After framing of additional issues, the learned Additional District Judge instead of remanding the case preferred to record the evidence. The parties were given the chance to produce the evidence.

When the case came up for hearing, the respondent preferred an application for remanding the case to the trial Court. The said application was contested by the petitioner contending inter alia, that at this stage remanding of the case is not called for and it will delay the disposal of the appeal.

The learned Additional District Judge, Sangrur, vide the impugned order held that though the appeal is pending for the past many years, the case should have been remanded when additional issues were framed. He felt that the learned Additional District Judge (his predecessor) should not have recorded the evidence. According to the learned Additional District Judge, it is better that the learned trial Court expresses the opinion so that either party may not lose a further right of appeal. Accordingly, an order remanding the case was made and judgment and decree of the learned trial Court was set aside. Aggrieved by the same, present revision petition has been filed.

Learned Counsel for the petitioner assails the findings of the teamed Additional District Judge contending that once the entire evidence as such has been recorded, there is no justification in remanding the case to the trial Court.

What is being urged gets support from the scheme of the Code of Civil Procedure. Order 41 Rule 23 of the CPC (for short "the Code") permits the Appellate Court to remand the case under certain eventualities. It reads as under:-

"23. 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."

As one glances through the aforesaid relevant provision, it is abundantly clear that the Appellate Court under Order 41 Rule 23 of the Code can remand the case if the trial court has disposed of the suit on a preliminary issue and that decision is reversed. Similarly, under Order 41 Rule 25 of the Code, where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of facts, which appears to the Appellate Court essential to the right decision of the suit, the Appellate? Court may, if necessary, frame issues and refer the same to the trial Court to take additional evidence and decide the same. But Order 41 Rule 24 of the Code reads as under: -

"24. 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 under some ground other than that on which the Appellate court proceeds."

A bare reading of the same reveals that if the evidence on the record is sufficient to enable the Appellate Court to pronounce the judgment, the Appellate Court may after resettling the issues, if necessary decide the same even if the trial Court had proceeded on some other grounds.

The facts in the present case clicks and are covered by Order 41 Rule 24 of the Code. As already pointed above, during the pendency of the appeal, an application was filed for amendment of written statement. The same was allowed. Additional Issues were framed. The learned Additional District Judge at the relevant time did not remand the case. He recorded the entire evidence of the parties in a number of years. Once the evidence was on the record, it is clear that it was sufficient to enable the Appellate Court to pronounce the judgment. At that stage, there was no question of remanding the same to the trial Court.

In all the litigations, curtain should finally be drawn and remanding of cases should, unless it is necessary, be avoided. The Supreme Court in the case of Bechan Pandey and Others Vs. Dulhin Janki Devi and Others, , held that remanding of the case should be avoided and it is appropriate that decisions are arrived at. Same view was expressed in the case of Sant Narain Mathur and Others Vs. Rama Krishna Mission and Others, and also in the case of Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta, . More close to the facts of the present case is the decision of this Court in the case of Darshan Lal and others Vs. Comrade Daya Singh and others, . Here in the cited case, the appellants had filed a civil suit for permanent injunction to restrain the respondents from interfering in their peaceful possession over the suit property. During the pendency of the suit, the appellants were forcibly dispossessed. Plaint had to be amended. The suit had been decreed and an appeal was filed. Amendment in the written statement was made by the defendants during the pendency of the appeal. A question arose as to whether the case should have been remanded or not. This Court held that remand was not justified, In paragraph 3 of the judgment. It was observed as under-

"It is unfortunate that the Additional District Judge did not understand the elementary principles of law. Even if he had found that there was legal justification for allowing the amendment of the written statement, he could have directed the defendants to lead such evidence before it as they thought fit and disposed of the appeal on merits else he could have allowed the amendment of the written statement, framed additional issue or issues arising from the pleadings of the parties and after so doing ask for a report from the trial Judge under Order XLI Rule 25 of the Code of Civil Procedure. Reversing the well reasoned judgment of the trial Court without assigning any reasons indicates lack of applicability of judicial mind or a deliberate attempt to set aside the judgment and decree of the trial Court......."

No different are the facts of the present case. Herein, as pointed out above, not only additional issues had been framed but entire evidence had been recorded by the Appellate Court. Once it is so, there is no justification in remanding the case to the trial Court, particularly when entire evidence was available and merely on the ground that right of appeal would be lost which could not be a just ground.

For these reasons, the impugned order is set aside. The revision petition is allowed. The parties are directed to appear before the learned Additional District Judge, Sangrur, on 17.2.1999. The learned Additional District Judge will hear the appeal and dispose of this old matter by 15.3.1999.