High Court
Legal Reasoning
{1} A.O. 23.24 W 24.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 23 OF 2024WITHAPPEAL FROM ORDER NO. 24 OF 20241. Ramdas Manik Marathe Age 77 years, Occupation Agri.2. Ravindra Ramdas Marathe, Age 50 years, Occupation Agri. Both R/o. War, Tq. And Dist. Dhule... Appellants.VERSUS1. Ashabai Nanabhau Jadhav, Age 52 years, Occupation Agri. 2. Rajendra Ramdas Marathe, Age 45 years, Occupation Agri.3. Mangla Ramdas Marathe, Age 42 years, Occupation Agri.4. Rajubai Ramdas Marathe, Age 40 years, Occupation Agri.5. Sangita Ramdas Marathe, Age 38 years, Occ. Agri.All R/o. War, Tq. And Dist. Dhule... Respondents.Mr. A.S. Sawant, Advocate for appellants,Mr. S.P. Tiwari, Advocate h/f. Mr. N.L. Choudhari, Advocate forrespondent No.1Respondent Nos. 2 to 5 served. {2} A.O. 23.24 W 24.24.odt CORAM : S.G. CHAPALGAONKAR, J. DATE : 11th DECEMBER, 2024. J U D G M E N T :-The appellants/original defendant Nos. 1 and 2 impugn thecommon judgment and decree passed in R.C.A. No. 4 of 2017 and 5 of2017 dated 21.12.2023 passed by the District Judge, Dhule, therebysetting aside the judgment and decree dated 24.11.2016 passed by CivilJudge (Senior Division) Dhule in R.C.S. No. 239 of 2012, wherebyplaintiff’s suit was decreed for the relief of damages and defendants’counterclaim for delivery of vacant possession of the suit property wasdecreed.2.Narration of the facts germane for deciding the appeal issummarized as under :-Respondent No.1/plaintiff instituted R.C.S. No. 239 of 2012before the Civil Judge (Senior Division) at Dhule raising the claim forspecific performance of contract, permanent injunction and alternativerelief of damages. Plaintiffs contend that defendant is the owner of theland Gat No. 352/3 admeasuring 1 Hectare 43 R situated at village Var,Taluka and District Dhule. She executed registered agreement to saledated 8.4.2004 in favour of plaintiff and agreed to sale 70R land out ofher ownership for consideration of Rs. 1,55,000/-. The earnest amountof Rs. 15000/- was paid at the time of agreement. Defendants hadhanded over possession of the suit property to the plaintiff and agreed toexecute sale deed within a period of one year i.e. by 8.4.2004, afteraccepting balance consideration of Rs. 5,000/-. {3} A.O. 23.24 W 24.24.odtThe defendants avoided to execute the sale deed in favour ofplaintiff for one or the other count. Plaintiff was always ready andwilling to perform her part of the contract. On 9.5.2011, plaintiff issueda legal notice to defendant No.1, calling upon him to execute the saledeed. However, he flatly refused to do so and threatened to takepossession.3.Defendants filed written statement containing counter claim.Defendants contend that husband of the plaintiff is a money lender.Defendant No.1 was in need of money. Plaintiff’s husband paid Rs.1,00,000/- subject payment of interest @ 3% p.a. and by way of securityof loan, a registered agreement to sale was taken. It was a nominalagreement intended as security for loan. The claim is frivolous.According to defendants, interest of Rs. 36,000/- per year has beenregularly paid to the plaintiff. On 31.3.2010, total amount with interesti.e. Rs. 1,36,000/- was paid to the plaintiff and her husband. Theplaintiff assured to close the transaction and cancel the mutation entry.However, filed the present suit. As such, the defendants prayed that thesuit be dismissed and in case the Court finds that plaintiff is inpossession, same be handed over to them.4.The trial court framed issues, recorded evidence of theparties and concluded that the plaintiff has proved the agreement to sale,but failed to establish readiness and willingness to perform her part ofcontract. Therefore, a decree for damages Rs. 1,50,000/- was passed infavour of the plaintiff and plaintiff was directed to hand over vacantpossession of the property to the defendants by allowing the counterclaim. {4} A.O. 23.24 W 24.24.odt5.Plaintiff assailed the decree passed in suit as well as counterclaim by filing two separate appeals, bearing R.C.A. No. 4 of 2017 andR.C.A. No. 5 of 2017. The appellate court, partly allowed both theappeals and remanded the matter back to the trial court from the stage offraming of issues and to decide the suit afresh by giving opportunity toboth the parties. As such, the order of remand is subjected to challengein present appeals.6.Mr. Amol Sawant, learned advocate for the appellantvehemently submits that the parties have led evidence in tune with therespective pleadings. The trial court has accordingly recorded findingsagainst the issues framed and delivered its judgment. In appeals filed byplaintiff, the appellate court opined that issues as framed by the trialcourt were inadequate and it does not refer to the controversies whichcrept up from pleadings of the parties; accordingly, remanded the matterback by setting aside the judgment and decree passed by trial court. Mr.Sawant would further submit that it is not a case where parties arerequired to lead any more evidence. Even assuming that the trial courthad not framed any particular issue, unless the court finds that freshevidence is required to be led by parties, order of remand could not bepassed. He would submit that the appellate court was well equippedwith the pleadings and evidence of the parties on all aspects of thematter and it was possible for the appellate court to render its judgment,without relegating the parties to the trial court. He would submit thatthere was absolutely no necessity to direct fresh trial when substantiveevidence was already led by the parties. He would, therefore, urge thatthe appellate court failed to exercise jurisdiction in tune with the {5} A.O. 23.24 W 24.24.odtprovisions of Order 41 and unnecessarily remanded matter back to thetrial court thereby causing hardship to both sides. In support of hiscontention, he relies upon the judgment of the Honourable SupremeCourt in the matter of Nirmala Devi Vs. Gurgaon Scheduled Caste andVimukta Agricultural Credit Society (2021) 18 SCC 785, to contend thatmere omission to frame an issue does not vitiate the proceeding whenparties were fully aware about the rival case and led evidence not only insupport of their contention but in refutation of those of other side. Insuch case, it cannot be said that absence of issue was fatal to the case orthere was mistrial which vitiated the proceeding.7.Per contra, Mr. S.P. Tiwari, learned advocate for respondentNo.1/plaintiff vehemently submits that the appellate court has clearlynoted that trial court has failed to frame the issues in tune with Order 14of C.P.C. The appellate court referred to the provisions of Civil Manualand finding substantive failure to cast relevant issues, directed remandof the matter. He would, therefore, urge that the appellate court hasrightly exercised jurisdiction in tune with Order 41 Rule 23 of C.P.C.which does not warrant interference in present appeals.8.Having considered submissions advanced and after goingthrough reasoning adopted by appellate court, it can be observed thatappellate court remanded matter to trial court with direction to frameproper and material issues and decide suit afresh by giving opportunityto both sides. However, appellate court has not specified exactly whatissues ought to have been framed by the trial court. By reading thejudgment of the appellate court some inference in this record can bedrawn. Para. 18 of the judgment reads as under :- {6} A.O. 23.24 W 24.24.odt“ I have perused the entire judgment and decree passed bylearned trial court. After perusal of entire judgment, itappears that, learned trial court has not framed the issueregarding the maintainability of counter-claim ?. Whetherdefendant No.1 is entitled for possession of suit property onthe basis of title ?Whether court fees on the counter-claimis properly paid/ Whether the doctrine of Section 53A of theTransfer of Property Act is applicable in present case ?”9.In this regard, it can be observed from the grounds of appealand submissions advanced by respective parties before the District Courtthat it was not the case of the plaintiff that she wanted to lead any moreevidence in support of her contention or it was not the case ofdefendants that some important evidence could not be laid for want ofproper issues. In this case, plaintiff is claiming specific performance ofcontract by asserting her possession, whereas, defendants refute theclaim for specific performance and by way of counter claim seek decreefor possession. In this background, assuming that issues as mentioned inpara.18 of the appellate court’s judgment are framed, the question is,whether fresh trial is required or any more evidence is required to be ledby parties. The learned advocates appearing for the respective parties,do not dispute before this Court that no more evidence is required to berecorded and matter can be decided on the basis of evidence alreadyadduced by the parties.10.In the light of aforesaid scenario, reference can be made tothe provisions of Order 41 Rule 25, which stipulates that, where the {7} A.O. 23.24 W 24.24.odtCourt from whose decree an appeal preferred has omitted to frame anyissue or determine any question of fact, which was essential to the rightdecision of the suit, the appellate court may frame such issue and referthe same for trial to the court and direct such court to take additionalevidence required. Therefore, in the peculiar case where the appellatecourt forms the opinion that particular issue is not framed, that itself isnot ground to remand the matter. Instead, particular issue can beframed and referred to the trial court in case evidence is required to beled by parties. However, when the particular issue can be decided on thebasis of evidence already recorded by the parties, the remand of thematter or even reference of the issue to the trial court would not benecessary. In this regard, reference can be given to the judgment of theSupreme Court in the matter of Ashwin Kumar K. Patel Vs. State of UttarPradesh reported in AIR 1999 SC 1125, wherein, the Supreme Courtobserved that power of the appellate court under Order 41 Rule 23should not ordinarily be exercised merely because in its view reasoningof the trial court in some aspects was wrong. When material is availablebefore the appellate court, appellate court itself should decide the appealone way or the other.11.Considering scheme of the provisions of Order 41 Rules, 23,23A, 24 and 25, it has been reiterated that remand order should not becasually passed since it causes delay and prejudice to the involvedparties. Provisions contained under Rule 23A of Order 41 contemplatesthat when the appeal is disposed of otherwise on preliminary point anddecree is reversed in appeal and re-trial is considered necessary, theappellate court can exercise power as contained in Rule 23. Said poweris further subject to Rule 24 and 25 of Order 41, which suggest that {8} A.O. 23.24 W 24.24.odtwhere evidence upon record is sufficient to enable the appellate court topronounce judgment, after resettling the issues, if necessary, finallydetermine the suit, notwithstanding that the court from whose judgmentappeal is preferred has proceeded wholly upon some ground other thanon which the appellate court proceeds. Rule 25 further clarifies thatwhere the trial court has omitted to frame or try any issue or determineany question of fact, which was essential for right decision of the suit, theappellate court may frame such issue and refer the same for trial to thecourt from whose decree appeal is preferred and in such a case, directsuch court to take additional evidence required.12.In the light of aforesaid legal position, if concern of theappellate court as discernible from para. 18 of the judgment isconsidered, all the 3 issues, as to entitlement of the defendant No.1 toget possession of the suit property or sufficiency of court fees on counterclaim or application of doctrine under Section 53A of the Transfer ofProperty Act, can be considered at the appellate stage, without recordingof additional evidence. Nothing is discernible from the reasoning of theappellate court to support its direction for fresh trial. None of the partieshas actually shown intention to bring on record additional evidenceeither oral or documentary. Apparently, parties have recorded oralevidence on all aspects of the matter. Requisite documents are tenderedin evidence. Therefore, there was no impediment for the first appellatecourt, to re-appreciate the same and render its decision on merit.13.This court is of the view that remand in such case wasabsolutely unwarranted and would result in unnecessary delay in thedecision of the lis. In the result, the following order :-
Decision
{9} A.O. 23.24 W 24.24.odtO R D E R[A]Both the appeals are partly allowed;[B]The impugned judgment and decree dated 21.12.2023 passed in R.C. A. No.4 of 2017, which is subject matter of Appeal From Order No. 23 of 2024 is hereby quashed and set aside;[C]The impugned judgment and decree dated 21.12.2013, passed in R.C.A. No.5 of 2017, which is subject matter of Appeal From Order No. 24 of 2024 is hereby quashed and set aside;[D]The appellate court shall re-register /re-admit the appeals and decide the same, on the basis of evidence already tendered into service, in consonance with powers conferred under Order 41.[E]Parties shall appear before the appellate court on 10th ofFebruary, 2025. The appellate court shall endeavour to decide the appeals, within a period of one year from the date of appearance of parties.[F]Civil applications, if any, stand disposed of .[G]Both the appeals stand disposed of with aforesaid directions.[S.G. CHAPALGAONKAR, J] grt/-