High Court
Case Details
RSA 93/2003 BEFORE HON’BLE MR JUSTICE N.CHAUDHURY This Second Appeal at the instance of the plaintiff is directed against the appe llate judgment and decree dated 10.2.2003, whereby the learned first appellate c ourt allowed the appeal and dismissed the suit of the plaintiff reversing the fi nding of the learned trial court, by judgment and decree dated 16.5.2002 passed by the learned Judge Senior Division No.2, Cachar, Silchar in T.S.No. 109/97.
Legal Reasoning
2. The plaintiff instituted T.S. No.109/97 in the Court of the lear ned Civil Judge (Sr.Division) No.1 at Silchar stating that the defendants are pe rmissive occupier with regard to plot of land measuring 3B. 18K. 6 Chattak and t hat they had previously made an attempt to get their status adjudicated as tenan t by filing T.S.No.47/93. The said suit was eventually dismissed and appeal file d thereafter also failed. The plaintiff, therefore, filed the suit for a decree for eviction of the defendants and this was done after serving a notice dated 26.6.97 on the defendants for ejectment. 3. On being summoned, the defendant submitted written statement no t only denying the case of the defendants but also stating their own facts. On the basis of the pleadings of the parties, the learned trial court framed as ma ny as 6(six) issues and the same are quoted below: 1.Is there any cause of action for the suit ? 2.Is the suit barred by limitation? 3.Is the suit bad for non-joinder of necessary party ? 4.Whether the plaintiff has right, title and interest over the suit land ? 5.Whether the defendants are liable to be evicted being no licence on the suit land ? 6.To what relief the plaintiff is entitled ? (cid:29) 4. The learned trial court decreed the suit on contest holding t hat the plaintiff is the owner and that the defendants are permissive occupier u nder the plaintiff and that they have no right, title and interest to continue i n possession in absence of any right, title and interest. The said judgment da ted 16.05.02, passed by the learned Civil Judge Senior Division No.2, Cachar, Si lchar was taken on appeal by the defendant in T.A.No.2/02 in the court of the le arned District Judge, Cachar, Silchar. The learned District Judge, Cachar at Sil char passed judgment and order dated 10.02.2003 and remanded the case for re-tr ial observing in Para 10 as follows:- (cid:28)On perusal of the case record, I find that there is a certified copy of the doc ument . Unfortunately this document has not been exhibited and proved by the def endant-appellant. It reveals that perhaps the defendant-appellant being a layman has been misrepresented of the fact of existence of such a document. On perusal of the said document I find reason to hold that if the said document is exhibit ed and proved, the defendant-appellant would be owner in possession in respect o f a plot of land measuring 17 kattas in the disputed dags and pattas. So, upon c onsideration of the above noted facts, I hold that far lapses of the learned cou nsel of both the sides, this suit could not be properly decided by the learned c ourt below and as such I hold that the suit is required to be remanded backto th e learned court below by setting aside the impugned judgment and decree with a d irection to afford opportunity to both the parties to amend the plaint and the w ritten statement to suit their purposes and to adduce evidence and to dispose of the suit in accordance with law. (cid:29) 5. It is this appellate judgment which has been brought under chall enge before this court U/s. 100(1) of the CPC. The said second appeal has been c onverted to SAO by an order passed by this court today, in view of the fact that against the order of remand passed by the appellate court no second appeal lies and rather an SAO lies under Order XLI Rule 1(u) of the Code of Civil Procedure . An appeal under Order LXI Rule 1(u) is to be decided on substantial question o f law in view of the law laid down by the Apex Court in the case of Narayanan V s Kumaran and Ors., reported in (2004) 4 SCC 26. 6. e substantial questions of law vide order dated 18.7.03. This court while admitting this appeal framed the following thre (a).Whether the impugned judgment and decree in appeal remanding the suit for re trial is based on non-existent facts, documents, surmises and is therefore not s ustainable in law ? (b).Whether the appellate court has exceeded its jurisdiction in remanding the e ntire suit for re-trial ? (c).Whether an appellate court can pass an order of remand for retrial of the su it expending and changing the nature of the suit directing parties to amend thei r pleadings and to adduce new evidence legally in exercise of power under appell ate jurisdiction ?
Legal Reasoning
7. I have heard Mr. A.B.Choudhury, learned Senior counsel assisted by Mr . M.A.Choudhury, learned counsel appearing for the appellant and Mr P.Roy, ass isted by Mr.T.Sheikh, learned counsel appearing for the respondent. 8. At the thresh hold Mr. A.B.Choudhury, learned Senior counsel appe aring for the appellant submits that although as many as three substantial quest ions of law have been framed in this case, the substantial question No.(b) itsel f is sufficient to decide the Second Appeal and other two substantial questions of law need not be decided. Accordingly, the said substantial question No.(b) a nd substantial question No.(a) are abandoned as not pressed on the prayer of the learned counsel for the appellant/plaintiff. At this stage, the only considerat ion before this court is as the substantial question No.(b) referred to above. I n other words, whether the order of remand was justified is the main question to be decided by this Court. 9. Drawing my attention to Para 10 of the impugned first appellate judgment, the learned Senior counsel for the appellant/plaintiff would argue tha t the first appellate court had not made observation as to which document the de fendant ought to have exhibited. The learned first appellate court has not made any mention as to the ’certified copy of a document’ which according to the lea rned counsel if brought in record in accordance with law, would have reversed th e decision in favour of the defendants 10. Per contra, Mr. P.Roy, learned counsel for the respondent has st ated that a judgment passed in RSA No. 169/84 was exhibited by the defendants a t the trial stage which if considered would establish the status of the defenda nts as tenant and hence the plaintiffs’ suit is devoid of any merit. The other d ocument which is stated to be on record but not exhibited could not be traced i n the records. The learned counsel Mr. P.Roy was permitted to inspect the recor ds in court and he also could not find out any such document as stated in Para 1 0 of the impugned judgment. In the absence of said document and or any indicat ion to trace the document, the said finding of the appellant court has to be he ld as perverse. The remand order passed by the learned first appellate court, th erefore, cannot be held to be justified and accordingly the sole substantial que stion of law is decided in the negative and in favour of the appellant (plaintif f). 11. Consequently, this appeal is allowed. The records shall be sent back to the learned first appellate court, who shall decide the appeal afresh o n the basis of the materials available on record, unless proper application unde r the appropriate provision of law for bringing any additional document on recor d is submitted by the contesting defendants. 12. rder as to cost.
Decision
With the above, observations and directions, the appeal is allowed. No o