Jagjiwan Singh v. Smt.Bhan Kaur

the record, is that Jagjiwan Singh son of Walaiti Singh appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit against Smt.Bhan Kaur widow of Gurmail Singh respondent-defendant (hereinafter to be referred as “the defendant”) for a decree of possession, inter-alia, pleading that he is owner of the land in dispute, which was under cultivation of one Babu Singh as a tenant at will, who had expired in the month of December, 1995. After his death, the defendant took the possession of the disputed land forcibly. Concisely, the plaintiff claimed that he is owner, but the possession of the defendant is unauthorized. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of possession against the defendant in the manner described here-in-above.

2. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; locus standi, cause of action of the plaintiff, nonjoinder and misjoinder of necessary parties. According to the defendant, she has become owner of the property in dispute by way of adverse possession. The possession of Babu Singh deceased as a S.A.O.No.69 of 2004 2 tenant was denied by her. It will not be out of place to mention here that the defendant has stoutly denied the ownership of the plaintiff over the suit land and all other allegations contained in the plaint and prayed for dismissal of the suit.

3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:-

1. Whether the plaintiff is entitled to the possession of the suit property?OPP

2. Whether the suit is not maintainable?OPD

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

4. Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD

5. Whether the defendant has become the owner of the property in dispute by adverse possession?OPD

6. Whether the plaintiff has concealed the material facts from the court?OPD

7. Whether the suit is bad for non-joinder and mis-joinder of the necessary parties?OPD

8. Whether the suit is liable to be dismissed for the reasons mentioned in the preliminary objection no.7 in the written statement?OPD

9. Relief.

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

5. Taking into consideration the entire evidence on record, the trial Court decided issue No.1 in favour of the plaintiff, while the remaining issues were answered against the defendants. In view of findings on various issues, the trial Court decreed the suit of the plaintiff, by virtue of judgment and decree dated

3.12.2003.

6. Aggrieved by the judgment and decree of the trial Court, the defendant filed the appeal alongwith an application under Order 41 Rule 27 read with section 151 CPC for additional evidence. The first appellate Court accepted S.A.O.No.69 of 2004 3 the appeal, set aside the judgment and decree and remanded back the case to the trial court for its fresh decision, vide impugned judgment dated 18.10.2004.

7. The appellant-plaintiff did not feel satisfied with the impugned judgment of Ist appellate Court and filed the present appeal. That is how, this matter is placed before me.

8. The bare perusal of the record would reveal that the plaintiff filed the simple suit for a decree of possession against the defendant. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decided the case on merits, discussing all the issues and consequently decreed the suit of the plaintiff. But strange enough, the first appellate Court allowed the additional evidence, impleadment of the parties and remanded the case to the trial Court for its fresh decision.

9. Such thus 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?

10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, as the impugned judgment of the Ist appellate Court cannot legally be sustained, therefore, the present appeal deserves to be accepted.

11. 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 Khasra girdawari from the years 2000 to 2002 as additional evidence as well as impleadment of Amrik Singh, Jarnail Singh and Jaswinder Singh as necessary and proper parties, vide impugned judgment dated 18.10.2004.

12. 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 S.A.O.No.69 of 2004 4 has omitted to frame or try any issue, or to determine any question of fact, which 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.”

13. 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.

14. In this manner, in the instant appeal, in the event of allowing S.A.O.No.69 of 2004 5 additional evidence under Order 41 Rule Rule 27 CPC, then two courses were open to the first appellate 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.”

15. 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 and impleadment of necessary parties 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. The law laid down by this Court in SAO No.18 of 2004 titled as “Surinder Kaur and others vs. Didar Singh” and S.A.O.No.41 of 2009 titled as “Ved Pal and others Vs. Tek Ram” decided on 10.08.2010 “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Hence, the contention of learned counsel for the appellant- plaintiff has considerable force and the contrary arguments of learned counsel for respondent-defendant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.

16. 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 judgment deserves to be set aside in the obtaining circumstances of the case.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. S.A.O.No.69 of 2004 6

18. 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 judgment dated 18.10.2004 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.

19. The parties through their counsel are directed to appear before the first appellate Court on 25.10.2010. (Mehinder Singh Sullar) Judge

24.8.2010 AS Whether to be referred to reporter?Yes/No