High Court

Legal Reasoning

{1} SA 728 & 29.13.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 728 OF 2013WITHSECOND APPEAL NO. 729 OF 2013.Charandas S/o. Nivrutti Gavle,Age 57 years, Occ. Service,R/o. Ahmedpur, Tq. Ahmedpur,Dist. Latur... APPELLANT ( Orig. Defendant)VERSUS1.Dagdu S/o. Nivrutti Gavle,Age 59 years, Occ. Service.2.Manohar s/o. Nivrutti Gavle,Age 55 years, Occ. Meson,Both R/o. Ahmedpur, Tq. Ahmedpur,District Latur...RESPONDENTS (Orig. Plaintiffs)Mr. J.R. Patil, Advocate for appellantMr. Anand Chawre, Advocate for respondents. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 11TH MARCH, 2025. PRONOUNCED ON : 19th MARCH, 2025.JUDGMENT :1.Appellant/original defendant impugns the commonjudgment and decree dated 9.7.2013 passed by District Judge, Ahmedpurin R.C.A. No. 108 of 2011 and 109 of 2011, thereby dismissing RCS No.108 of 2011 and allowing R.C.S. No. 109 of 2011, directing defendant tohand over vacant possession of constructed room in the suit plot as {2} SA 728 & 29.13.odtdescribed in Para. No. 8A of plaint. (For sake of convenience, parties arereferred as per their original status in suit)2.Respondents/original plaintiffs instituted suit bearing RCSNo. 109 of 2011 for declaration of ownership and perpetual injunctionqua suit plot situated at Survey No. 85/2/1 at Ahmedpur, moreparticularly, described in plaint para. No.5. Plaintiffs and defendant arereal brothers. Plaintiffs contend that they purchased suit plot fromBabarao Apparao Kadam. They were put in possession of suit property.They developed the plot and constructed a room for storage ofconstruction material. Defendant, without any right and concern in thesuit property, started disturbing their peaceful possession and gavethreat to dispossess plaintiffs from suit plot. On 29.11.2001, defendantdenied plaintiffs ownership over suit plot and as such, cause of actionarose to file suit. Hence, they claim relief of declaration of ownership andperpetual injunction against defendant.3.Defendant refuted averments in plaint. According to him, hecontributed equally with plaintiffs in purchase of suit plot. He paid equalcontribution to vendor of plot – Babarao Kadam alongwith plaintiffs.However, by misleading vendor Babarao Kadam, they got executed saledeed in their name. According to him, he resides alongwith his family insuit plot.4.Trial court framed issues, recorded evidence of parties andconcluded that plaintiffs have proved their title, however, failed to provepossession; eventually passed decree declaring that plaintiffs are ownersof suit plot and rejected the relief of perpetual injunction.5.Plaintiffs and defendant filed respective appeals before {3} SA 728 & 29.13.odtlearned District Judge at Ahmedpur. During pendency of appeal,plaintiffs filed an application for amendment of plaint, thereby seekingthe relief of possession and incorporating averments regarding theirdispossession during pendency of said suit. The appellate court allowedsuch amendment, eventually framed additional issue was framed asunder :-Sr.No.ADDITIONAL ISSUEFINDING1.Whether plaintiffs prove that during thependency of the suit in the month of July2003, defendant dispossessed plaintiffs fromthe room constructed on the suit plot ?Yes.6.Plaintiffs and defendant were permitted to lead evidence onadditional issue and finally appeal filed by defendant came to bedismissed, whereas, appeal filed by plaintiffs came to be allowed,granting decree of possession in favour of plaintiffs. 7.In this background, the present second appeals are filed.8.Mr. Patil, learned advocate for appellant/defendant submitsthat suit was instituted for relief of declaration of ownership andperpetual inunction. Trial court, after recording evidence of parties,accepted case of plaintiffs as to relief of declaration of ownership,however, refused to grant decree of injunction, holding that defendant isin actual possession of property. Plaintiffs filed appeal against refusal togrant relief of perpetual injunction. During pendency of said appeal, theymoved an application for amendment of plaint for incorporatingaverments regarding dispossession by defendant and for adding theprayer for grant of decree of possession. The appellate court, therefore, {4} SA 728 & 29.13.odtframed additional issue, particularly, on the point of fact of allegeddispossession by defendant. Appellate court, further proceeded to recordevidence of plaintiff No.1 (at Exh.93) on additional issue as peramendment and concluded that plaintiffs have proved dispossession atthe hands of defendant and granted decree of possession in favour ofplaintiffs. According to Mr. Patil, the procedure adopted by appellatecourt was not in conformity with the provisions of Order 41 Rules 25 and26 of C.P.C.9.Per contra, Mr. Chaware, learned advocate forrespondents/plaintiffs submits that fact of dispossession of plaintiffs wasalready brought on record before the trial court. Evidence to that effectwas available on record of trial court. After amendment of plaint, merelyevidence of plaintiff No.1 was recorded at Exh.93 at appellate stage, andafter considering same alongwith other evidence already on record. Hewould, therefore, urge that no prejudice is caused to defendant due tothe procedure adopted by appellate court. He would, therefore, justify ejudgment and decree passed in appeal.10.Having considered the submissions advanced followingsubstantial questions of law arise for consideration in this appeal :-[I]Whether appellate court is justified in recording evidence in deference to the amendment of plaint and renderingfinding of fact at appellate stage, instead of relegating the issue of alleged dispossession of plaintiffs to trial court ?[ii]Whether the procedure adopted by appellate court is inconsistent with the provisions of Order 41 Rules 25 and 26. [iii]Whether right of defendant is prejudiced on account of {5} SA 728 & 29.13.odtrecording evidence and rendering a finding on issue of dispossession at appellate stage, causing loss of opportunity to assail the finding in appeal.12.Learned advocates for respective parties advanced theirsubmissions on aforesaid substantial questions of law and requested todecide appeals, at admission stage.13.Order 41 Rules 25 and 26, which are germane for decidingthe controversy involved in these appeals, read thus :-“25. Where Appellate Court may frame issues and refer them fortrial to Court whose decree appealed from.—Where the Court fromwhose decree the appeal is preferred has omitted to frame or try anyissue, or to determine any question of fact, which appears to theAppellate Court essential to the right decision of the suit upon themerits, the Appellate Court may, if necessary, frame issues, and referthe same for trial to the Court from whose decree the appeal ispreferred, and in such case shall direct such Court to take theadditional evidence required; and such Court shall proceed to try suchissues, and shall return the evidence to the Appellate Court togetherwith its findings thereon and the reasons therefor 1 [within such time asmay be fixed by the Appellate Court or extended by it from time totime]. 26. Findings and evidence to be put on record. Objections to findings.(1) Such evidence and findings shall form part of the record in the suit;and either party may, within a time to be fixed by the Appellate Court,present a memorandum of objections to any finding”.(2) Determination of appeal.—After the expiration of the period sofixed for presenting such memorandum the Appellate Court shallproceed to determine the appeal.”14.The aforesaid rules contemplate procedure where theappellate court frames an issue that has been omitted by trial court {6} SA 728 & 29.13.odtwhose decree was appealed from. In present case, appellate courtallowed the prayer for amendment of plaint at appellate stage. Plaintiffsincorporated averment as to their dispossession during pendency of suit ,eventually claimed relief of possession. Essentially, the issue framed wasrelating to factual aspect as to dispossession at the hands of defendantand requires recording of evidence. Eventually, examination of plaintiffsor his witnesses and their cross examination was necessary. In thesecircumstances, the appellate court was under obligation to follow theprocedure in tune with Rule 25 and after framing necessary issue, oughtto have referred the same to the trial court, with directions to recordadditional evidence required. In that contingency, the trial court wouldhave recorded additional evidence and returned evidence with findingon issue to the appellate court. At this stage, the procedure under Rule26 could have been resorted by parties and presented their memorandumof objections to such finding. The appellate court, then, could havedelivered judgment considering finding of trial court on all the issues,including additional issue so framed, keeping in mind the objections tothe finding recorded by trial court. The appellate court appears to havefailed to follow the above procedure.15. In present case, non-observance of aforesaid procedure hascertainly caused prejudice to the defendant, who lost an opportunity toget finding from trial court on the additional issue and in the event ofadverse finding, to assail it before the appellate court under Rule 26 . It istrite that, in cases, where additional evidence is required, appellate courthas no option than to remit the issue for decision to the trial court forrendering its finding after recording of evidence. The law on theaforesaid aspect has been crystallized by the Allahabad High Court in the {7} SA 728 & 29.13.odtcase of Bhonu vs. Nizamuddin Vs. Nankulli and others reported in AIR1997 (ALL) 236, wherein their lordships has observed in para.15 asunder :-“15.Under these circumstances, the appellate judgment cannotbe upheld. There should be a remand of the case so that the firstadditional issue touching the allegation of dispossession on2.3.1980 be referred to the trial Court for a decision thereon afteraffording opportunity to the parties to lead evidence on thatpoint. Once the issue is answered by the trial Court, theaggrieved party may be allowed an opportunity to file appeal,cross appeal, cross objection, as the case may be and only thenthe first appeal should be decided touching all the issuesincluding the issue on Court on the question of recovery ofpossession.”16.Similar legal position can be discerned from the expositionof law by the Supreme Court in the case of Gobila Gurnam vs. KurinotiAyappa and others AIR 1974 SC 1702, and in the case of Smt. BachchanDevi and another vs. Nagar Nigam Gorakhpur and another reported inAIR 2008 SC 1284. The relevant observations are found in para. 10 of ejudgment in case of Bachchan Devi (supra), which reads thus :-“10.A bare reading of the provision makes it clear that the samecomes into operation when the Court, from whose decree theappeal is preferred, has omitted to frame or try and issue, or todetermine any question of fact which appears to the appellate courtessential for the right decision of the suit upon the merits. In orderto bring in application of Order XLI Rule 25 the appellate courtmust come to a conclusion that the lower court has omitted toframe issues and/or has failed to determine any question of factwhich in the opinion of the appellate court are essential for the rightdecision of the suit on merits. Once the appellate court comes tosuch a conclusion it may, if necessary, frame the issues and referthe same to the trial court. In other words there is no compulsion onthe part of the appellate Court to do so. This is clear from the use of {8} SA 728 & 29.13.odtthe expression 'may'. But the further question that arises is whetherin such a case the appellate court is bound to direct the trial court totake additional evidence required. This is a mandatory requirementas is evident from the provision itself because it provides that thelower court shall proceed to try such case and shall return theevidence to the appellate court together with findings therein andthe reasons therefor. As noted above, the provision becomesoperative when the appellate court comes to the conclusion aboutthe omission on the part of the lower court to frame or try anyissue. Once the appellate court directs the lower court to do so, it isincumbent upon the trial court to take additional evidence required.As has been rightly contended by learned counsel for the appellant,there may be cases where additional evidence may not be required.But where the additional evidence is required, then the lower courthas to return the evidence so recorded to the appellate courttogether with the findings thereon and the reasonstherefor. Requirement for recording the finding of facts and thereasons disclosed from the facts is because the appellate court atthe first instance has come to the conclusion that the lower courthas omitted to frame or try any issue or to determine any questionof fact material for the right decision of the suit on merits. It has tobe noted that where a finding is called for on the basis of certainissues framed by the appellate court, the appeal is not disposed ofeither in whole or in part. Therefore the parties cannot be barredfrom arguing the whole appeal after the findings are received fromthe court of the first instance. This position was highlightedin Gogula Gurumurthy and Others v. Kurimeti Ayyappa (1975(4)SCC 458), where it was inter-alia observed in para 5 as follows:"We consider that when a finding is called for on the basis ofcertain issues framed by the appellate Court the appeal is notdisposed of either in whole or in part. Therefore the partiescannot be barred from arguing the whole appeal after thefindings are received from the court of first instance. We findthe same view taken in Gopi Nath Shukul v. Sat Narain Shukul(AIR 1923 All 384)."17.In light of aforesaid legal position and the factual matrix, theprocedure adopted by appellate court, thereby framing an additional {9} SA 728 & 29.13.odtissue on the point of dispossession and then, to record evidence atappellate stage, cannot be countenanced. Once the appellate court findsthat issue as to factual matrix was omitted by trial court, appellate courtcould have framed such issue and remitted the same back to trial courtfrom whose decree appeal is filed, for recording evidence. Afterreceiving the finding on the issue from trial court, parties could havebeen given an opportunity to raise their objection in terms of Rule 26 andthen decide the entire appeal alongwith objections to the finding onadditional issue recorded by trial court. This seems to have not beendone. The right of defendant is therefore seriously prejudiced. Theimpugned judgment and decree is, therefore, unsustainable in law.18.In the result, substantial questions of law will have to beanswered as under :-Substantial question No.1 is answered in the negative andsubstantial questions No. 2 and 3 are answered in the affirmative.19.Hence, the following order :-O R D E R[I]The second appeals are partly allowed[ii]The common judgment and order dated 9.7.2013 passed by learned District Judge, Ahmedpur, in RCA No. 108 of 2011 and 109 of 2011 is hereby quashed and set aside;[iii]The appellate court shall remit the additional issue to the trial court for decision. In that event, parties would be at liberty to lead evidence on the additional issue before trial court. Trial court, after recording such evidence, record a finding thereon and return the evidence to the appellate court together with its finding and reasons therefor. {10} SA 728 & 29.13.odt[iv]On receipt of such finding, the aggrieved party shall be at liberty to file objections to the findings as contemplated under Order 41 Rule 26, within time fixed by appellate court.[v]The appellate court shall, thereafter decide the appeals in accordance with law.[vi]The appellate court shall endeavour to complete aforesaid procedure within a period of six months from the date of receipt of writ of present order, and for that purpose issue necessary directions to the trial court.[vii]Parties shall appear before the appellate court on 8th April, 2025.[viii]Record and proceedings be sent back.[x]Appeals stand disposed of in above terms without any ordersas to costs. Pending civil application, if any, stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-