Surinder Kaur & Ors. v. Didar Singh

record, is that Didar Singh son of Norata Ram respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of possession by way of specific performance of agreement dated 7.9.2000 (Ex.P1) against Mukhtiar Singh son of Chanan Singh (since deceased), being represented by his legal representatives Surinder Kaur etc.-appellant-defendants (hereinafter to be referred as “the defendants”). The defendants contested the suit, stoutly denied the execution of the agreement (Ex.P1) and all other allegations contained in the plaint and prayed for dismissal of the suit.

2. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:-

1. Whether the defendant entered into an agreement with the plaintiff to sell on 7.9.2000 regarding suit land and received Rs.1 lac as earnest money as alleged ?OPP

2. Whether the suit is not maintainable in the present form?OPD

3. Whether the plaintiff has no locus standi to file the present suit?OPD

4. Whether alleged agreement dated 7.9.2000 is forged S.A.O.No.18 of 2004 2 and fabricated document, if so to what effect?OPD

5. Whether the plaintiff has been and still ready and willing to purchase the suit property?OPP

6. Whether the plaintiff is entitled for specific performance of the agreement to sell?OPP

7. If the above issue is not proved whether in the alternative, plaintiff is entitled for any amount, if so to what effect as alleged?OPP

8. Relief.

3. In order to prove their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence.

4. Taking into consideration the entire evidence on record, the trial Court decided issue Nos.1 and 5 to 7 against the plaintiff, while the remaining issues were answered in favour of the defendants. In view of findings on various issues, the trial Court dismissed the suit of the plaintiff, by virtue of judgment and decree dated 2.3.2002.

5. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal alongwith an application for permission to adduce evidence under Order 41 Rule 27 read with section 151 CPC. The first appellate Court allowed the production of sale deed and power of attorney by way of additional evidence and remanded the case to the trial court for fresh decision, vide impugned order dated

10.3.2004.

6. The appellants Surinder Kaur and others, LRs of Mukhtiar Singh defendant, did not feel satisfied with the impugned order of Ist appellate Court and filed the present appeal. That is how, this matter is placed before me.

7. The perusal of record would reveal that the plaintiff filed the suit for a decree of possession by way of specific performance of the agreement (Ex.P1). Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decided the case on merits, taking all the issues and consequently dismissed the suit of the plaintiff. But strange enough, the first S.A.O.No.18 of 2004 3 appellate Court allowed the additional evidence and remanded the case for fresh decision.

8. Above being the position on record, now the sole question that arises for determination in this appeal is, as to whether the first appellate Court was legally justified in remitting the case to the trial Court or not?

9. After hearing the learned counsel for the parties, after going through the record with their valuable help and after considering the matter deeply, to my mind, as the impugned order of the Ist appellate Court cannot legally be maintained, therefore, the instant appeal deserves to be accepted.

10. As is evident from the record that the first appellate Court accepted the application under Order 41 Rule 27 read with section 151 CPC and allowed the production of sale deed executed by Mukhtiar Singh as well as the power of attorney dated 13.7.2001 as additional evidence, vide order dated 10.3.2004. At the same time, the first appellate Court accepted the appeal, set aside the judgment and decree and remanded the case to the trial Court for its fresh decision, vide separate order of even date, which is as under:- “Vide my separate order of even date, the application for permission to produce additional evidence has been allowed. Since the application for additional evidence has been allowed, the appeal is accepted and the judgment and decree of the trial Court are set aside and the learned trial Court is directed to make a fresh decision after allowing the parties to lead their respective evidence. The parties through their counsel are directed to appear in the learned trial Court on 15.3.2004 for further proceedings.”

11. It is not a matter of dispute that the trial Court has decided the case on merits by taking all the relevant issues. In such a situation, the matter can only be remanded to the trial Court under the provisions of Order 41 Rule 25 CPC, which postulates that “where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which S.A.O.No.18 of 2004 4 appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.” Rule 24 CPC posits that “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 upon some ground other than that on which the Appellate Court proceeds.”

12. Meaning thereby, the Ist appellate Court can remand the case to the trial Court only in the event, if that squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on record, then it was the statutory duty of the Ist Appellate Court to decide the case on merits, as contemplated under Rule 24 CPC. It cannot straightway rush to Rule 25 CPC to make an order of remand. The order of remand can only be made, where the trial Court has omitted to frame or try any issue, or to determine any question of fact essential to right decision of the suit. The provision of Rule 25 CPC is only to be invoked, where an issue should be framed for proper decision of the suit, but was not framed by the trial Court. The provisions of remand cannot be invoked to enable the parties to have a second innings with a view to fill up the lacuna in the pleadings or evidence, as the case may be. The Courts should extremely be slow to exercise the jurisdiction of remand, as envisaged under Rule 25 CPC, otherwise there would be no end to the litigation and the people would lose faith in the judicial system.

13. In this manner, in the event of allowing additional evidence under Order 41 Rule Rule 27 CPC, then two courses were open to the first appellate S.A.O.No.18 of 2004 5 Court, as envisaged under Rule 28 CPC, which escalates that “wherever additional evidence is allowed to be produced (i) the Appellate Court may either take such evidence (ii) or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court without setting aside the judgment and decree of the trial Court.” Having complied with the provisions of Rule 28 CPC, then the first appellate Court was legally required to work out the legal consequences and ought to have decided the matter on merits itself, instead of sending the case back to the trial Court. There is no legal bar in deciding the appeal on merits by the first Appellate Court itself after production of additional evidence in this regard. The order of remand cannot possibly be passed in a routine manner just in order to indicate the disposal of the appeal, without any legal basis.

14. Thus, seen from any angle, as the decision of remand is not in consonance with the statutory provisions of Order 41 Rules 24, 25 and 28 CPC, therefore, the impugned order deserves to be set aside in the obtaining circumstances of the case.

15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

16. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing, the instant appeal is hereby accepted. The impugned order dated 10.3.2004 is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law.

17. The parties through their counsel are directed to appear before the first appellate Court on 22.9.2010. (Mehinder Singh Sullar) Judge

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