High Court
Case Details
FAO 11/2004 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and order dated 24.09.2003 passed by the learned District Judge, Cachar at Silchar, in Ti tle Appeal No.2/2003, allowing the appeal preferred by the defendant Nos.1 to 5 by setting aside the judgment and decree dated 27.01.2003 (decree drawn on 05.02 .2003) passed by the learned Civil Judge (Sr. Division) No.1, Cachar at Silchar, in Title Suit No.36/1995, whereby and whereunder the plaintiffs’ suit was initi ally decreed. 2.
Legal Reasoning
The appellants as plaintiffs instituted the said suit for declaration of right, title and interest in respect of the land described in Schedule-2 to the plaint, which is part of the Schedule-A land and for confirmation of possession . The suit was contested by the defendant Nos.1 to 5 and 11 by filing written st atements. The suit proceeded ex-parte against the defendant Nos.6 to 11 and 12 t o 20, they having not contested the suit. The Trial Court upon appreciation of the evidence adduced by the plainti 3. ffs, has decreed the suit. Though the defendant Nos.1 to 5 and 11 contested the suit by filing written statements and they, however, did not participate in the suit and neither cross-examined the plaintiffs’ witnesses nor adduced any eviden ce. 4. The defendant Nos.1 to 5 thereafter filed the aforesaid appeal, which ha s been allowed vide judgment and order dated 24.09.2003 by the learned District Judge, setting aside the judgment and decree passed by the Trial Court and reman ding the suit to the Trial Court for deciding afresh after giving opportunity of being heard to both the parties, without, however, recording any finding as to whether the defendant Nos.1 to 5 were prevented by sufficient cause in not appea ring in the Trial Court and whether the conditions stipulated in Order 9 Rule 13 CPC have been fulfilled. The other ground on which the appellate Court has set aside the judgment and decree passed by the Trial Court and remand the suit is t hat the Trial Court did not discuss all the evidence on record.
Legal Reasoning
5. I have heard Mr. S.P. Choudhury, learned counsel for the appellants. Non e appears for the respondents despite reflection of the names of the learned cou nsel appearing for them in the cause list. Referring to Order 41 Rule 23, 24 and 25 of the Civil Procedure Code it 6. has been submitted by Mr. Choudhury, the learned counsel for the appellants, tha t since the suit was not decided on the preliminary point, but was decided on al l the issues framed and there being no finding recorded by the first appellate C ourt that retrial is considered necessary, the appellant Court ought not to have passed the order of remand and instead ought to have decided the appeal on the basis of the evidence already on record, since one of the grounds for passing su ch order of remand is that the Trial Court did not discuss all the evidence on r ecord. It has also been submitted that the judgment passed by the first appellat e Court remanding the suit for fresh decision giving opportunity to the defendan ts to contest the proceeding, needs interference as the appellate Court did not record any finding relating to the satisfaction of the conditions stipulated in Order 9 Rule 13 CPC for setting aside a decree passed ex-parte against few of th e defendants. 7. e appellants. I have considered the submissions advanced by the learned counsel for th 8. It appears from the impugned judgment and order that the appellate Court set aside the Trial Court’s judgment and decree and passed the order of remand on the ground that the Trial Court (cid:28)did not examine any document submitted by bo th the parties, but simply relied upon the evidence adduced by one of the plaint iffs on ex-parte for reason that the defendants failed to cross examine the witn ess and for reason that the defendants failed to prove their counter claim by ad ducing oral evidence (cid:29). It has further been observed that the Trial Court has pas sed the judgment and decree without entering into the merit of the claims of bot h the parties, though the fact remains that the defendant Nos.1 to 5 and 11 afte r filing of the written statements did not participate in the suit. The appellat e Court has also not recorded any finding as to why the decree needs to be set a side, in other words, no finding relating to the existence of any ground as stip ulated in Order 9 Rule 13 CPC has been recorded. 9. Order 41 Rule 24 CPC provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate C ourt 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 App ellate Court proceeds. The Appellate Court, however, has the power to pass an or der for remand if the Appellate Court considers that a retrial is necessary. The Appellate Court has also the power to frame issues and refer them for trial to the Court whose decree appealed from. 10. As noticed above, in the instant case, the Appellate Court did not recor d any finding as to why retrial is considered necessary. The Appellate Court sim ply on the ground that the suit proceeded ex-parte and all the evidence on recor d are not discussed by the Trial Court while passing the impugned judgment and d ecree, has set aside the same and remand the suit to the Trial Court for fresh d ecision after giving the defendants an opportunity of being heard. 11. In view of the above, the judgment dated 24.09.2003 passed by the First Appellate Court is set aside. The appeal is remanded to the First Appellate Cour t for deciding the same afresh. The First Appellate Court shall go into the ques tion as to whether the grounds stipulated in Order 9 Rule 13 CPC, has been satis fied before the First Appellate Court and whether a retrial is necessary. In cas e the Appellate Court finds that the order to proceed ex-parte passed by the Tri al Court needs no interference and there are sufficient evidence on record and i t does not require framing of any further issues, the Appellate Court shall deci de the appeal on the basis of the evidence on record. The appellants are directe d to appear before the First Appellate Court on 19.12.2013. The First Appellate Court shall also issue notice to the appellants in the first appeal, since the l earned counsel appearing for them have not appeared before this Court today, and decide the appeal within a period of 3(three) months from the date of appearanc e. 12. 13. The appeal is accordingly allowed to the extent as indicated above. No costs. Registry is directed to send down the records forthwith, so as to reach 14. the Court of the learned District Judge, Cachar at Silchar before the date fixed for appearance of the parties.