1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 65 OF 2003
Balbhim S/o Sakharam Magar,
Age 54 years, Occu. Agri.,
R/o Village Magarwadi,
Tq. Ambajogai, Dist. Beed. ...Appellant
Versus
1] Sonbaba S/o Sidharam Mane,
Age 73 years, Occu. Agri.,
R/o Village Magarwadi,
Tq. Ambajogai, Dist. Beed.
2] Bhanudas S/o Ganpatrao Khandade,
Age 68 years, Occu. Legal Practitioner,
(Advocate), r/o Village Renapur,
Tq. Renapur, Dist. Latur
at present residing at Latur
C/o District Court, Latur. ...Respondents
.....
Mr. Ujwal Patil, Advocate h/f R.S. Deshmukh, advocate for the appellant
Mrs. M.A. Kulkarni, , Advocate for respondent No. 1
.....
CORAM : S. S. SHINDE, J.
DATE : 26.10.2010
JUDGMENT :-
1 This Appeal From Order takes exception to the Judgment and
Order dated 10th of July, 2003 in Regular Civil Appeal No. 25 of 1993.
Brief facts of the case are as under :-
::: Downloaded on - 09/06/2013 16:34:39 ::: 22 The original plaintiff is owner and possessor of land Survey No. 206, admeasuring 1 Hector situated at Ambajogai, (here-in-after referred as "suit land"). It is the case of the plaintiff that the plaintiff was in need of money for domestic expenses. Therefore, in the year 1976 he demanded Rs. 4,000/- with defendant No. 1. The defendant showed his readiness to pay the said amount subject to condition that if the plaintiff is ready the sale-deed of the suit land for the security of the said loan. It was decided that the defendant No. 1 will cultivate the land of the plaintiff, he had to get 3/4th share towards the interest of the amount of Rs. 4,000/- and had to give 1/4th share to the plaintiff. It was agreed that the plaintiff should execute the sale-deed in favour of defendant by way of security to the said amount and when the plaintiff replays the said amount, defendant will executed the re-conveyance deed and to have a faith to both of them. The sale-deed was agreed to be executed in favour of 3rd party i.e. defendant No. 2. Accordingly, the plaintiff by way of the security of money given by defendant No. 1 executed the sale-deed in favour of defendant No. 2 on 7th April, 1976 as agreed. Thereafter, the plaintiff came to know that against the agreed terms defendant No. 2 is executed the said sale-deed in favour of defendant No. 1 on 17th March, 1978. This fact came to the knowledge of plaintiff when defendant No. 1 refused to give his 1/4th share in the income of the said land. Sale-deed in between both the defendants is bogus and illegal, not binding on the plaintiff. It is further contention of the plaintiff that the Defendant No. 1 is enjoying suit ::: Downloaded on - 09/06/2013 16:34:39 ::: 3 land illegally and against the agreement since one year prior from filing of the suit. Thus, the plaintiff is entitled to get executed reconveyance deed from defendant No. 1 and also entitled to claim possession. However, defendant No. 1 avoided to refused to execute the reconveyance deed, and therefore, plaintiff issued notice to the defendant No. 1 on 6th October, 1984. In spite of notice, the defendant No. 1 denied the transaction. The defendant No. 2 did not reply to the said notice. The cause of action arose on 15th November, 1984 to file the suit. The plaintiff / appellant filed the suit for reconveyance deed of the sale, which was executed by way of security at serial No. 659 dated 7th April, 1976 in favour of defendant No. 2 about the suit land by accepting Rs. 4,000/- by the defendant No. 1 and also for obtaining possession of the suit land from him. It is also prayed that the sale-
deed executed in between both the defendants dated 17th March, 1978 be declared as not binding upon the plaintiff.
3. The defendant No.2 was duly served remained absent. Hence suit proceeded ex-parte against him, as per order of the Trial Court dated 14th February, 1985. The defendant No. 1 i.e. appellant herein appeared and strongly resisted the suit claim by filing Written Statement at Exh. 13.
4 The Trial Court after recording the evidence and hearing of rival submissions framed as many as twelve issues for ::: Downloaded on - 09/06/2013 16:34:39 ::: 4 consideration/determination. After appreciating the evidence on record and hearing the parties the Trial Court i.e. Jt. Civil Judge Senior Division, Ambajogai, dismissed the suit.
5 Being aggrieved by the Judgment and Order dated 20th February, 1993 in Regular Civil Suit No. 7 of 1985. The respondent No. 1 herein who is original plaintiff filed Regular Civil Appeal No. 25 of 1993 before the Ist Adhoc Additional District Judge, Ambajogai, Dist.
Beed. The
Appellate Court frame only two points for its
consideration/determination and by his Judgment and order dated 10th July, 2003 reversed the Judgment and Decree passed by the Trial Court and suit was remanded for retrial. The Appellate Court observed that the suit should be retried by giving opportunity of both the sides to adduce their respective evidence and decide it on merits. The said Judgment and Order of the Ist Adhoc Additional District Judge, Ambajogai, Dist. Beed is under challenge in this Appeal From Order.
6 This Court admitted this Appeal From Order and further proceedings in the lower Court were stayed, as a result though the suit was remanded for re-hearing the same proceedings remain stayed.
7 The learned Counsel appearing for the appellant submitted that the Appellate Court failed in its duties to adjudicate and address of all points felt for its consideration and remanded the suit for re-trial ::: Downloaded on - 09/06/2013 16:34:39 ::: 5 without discussing the merits and de-merits of the matter. According to the counsel for the appellant such order is impermissible. The learned Counsel further submitted that the Trial Court framed as many as 12 issues for its determination and by well reasoned Judgment and Order dismissed the suit. However, the Appellate Court without entering into the merits of the matter only framed two points for its determination and remanded the suit for re-trial to the Trial Court. According to the Counsel for the appellant such remand order is impermissible in law. It is further submitted that while remanding the matter back to the Trial Court, the Appellate Court has not taken into consideration the various issues including Whether the suit which was filed by the respondent No. 1 herein was within limitation or not? The learned Counsel further submitted that the peculiar facts and circumstances of the case did not warrant remand of suit for retrial. The Trial Court after giving fair opportunity to both the sides decided the suit. The Appellate Court should have decided the matter in one way or other without remanding the matter to the Trial Court. It is further submitted that the Appellate Court ought to have exercise the powers which are available to it and decided the matter at the Appellate stage itself. Learned Counsel further submitted that the remand order was absolutely unwarranted.
Therefore, learned Counsel relying on Supreme Court Judgments would submit that the order of remand should not be routine affair but it should be exception. Therefore, this Appeal From Order deserves to be allowed.
::: Downloaded on - 09/06/2013 16:34:40 ::: 68 On the other hand, learned Counsel appearing for the respondent submitted that the Appellate Court held that the proper opportunity was not given to both the parties and in the interest of justice and in order to give fair opportunity to both the parties to led the evidence, Appellate Court remanded the suit for re-trial, and therefore, the Judgment and Order passed by the Appellate Court needs no interference.
9 I have heard learned Counsel appearing for the respective parties, at great length, perused the Appeal From Order and original papers made available for the perusal.
At the outset, it is necessary to take into consideration the provisions, under which this Appeal From Order is filed in this Court and to what extent this Court can interfere in the impugned judgment and order passed by the lower appellate Court.
In the case of Narayanan Vs. Kumaran and others, reported in (2004) 4 SCC 26, the Hon'ble Supreme court has considered the provisions of Order 43 Rule 1(u) i.e. appeal from order under the provisions of section 104 of C.P.C. Order 43 Rule 1(u) reads thus:-
"43. (1) Appeals from Orders. - An appeal shall lie from the following orders under the provisions of Section 104 namely-
::: Downloaded on - 09/06/2013 16:34:40 ::: 7 (a) to (t) * * * (u) an order under Rule 23 or Rue 23-A of Order 41
remanding a case, where an appeal would lie from the decree of the appellate court."
In para 17 of the said judgment it is held thus:-
"17.
It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate Court."
Therefore, in the present case, this Appeal from order is ::: Downloaded on - 09/06/2013 16:34:40 ::: 8 required to be heard on the only grounds enumerated in Section 100 of C.P.C. In short, unless there is substantial questions of law falls for consideration of this court, this court is not suppose to entertain this appeal from order. This Court has to confine itself such facts, conclusions and decisions which have bearing on the order of remand and cannot canvass all the findings of the facts arrived at by the lower appellate court.
The learned appellate Court framed only two points i.e. Whether there are sufficient grounds to reverse the impugned Judgment and decree in this appeal and retrial is necessary?, and What order?. The point No. 1 is answered in the affirmative. I have carefully perused the reasons recorded by the lower Appellate Court. In para No. 15, the lower Appellate court opined thus :-
" Any way from the above facts and circumstances, it has to be stated that no full and fair opportunity is given to both the sides to adduce their evidence. It is principle of natural justice that both sides have to be heard and full and fair opportunity is to be given to both sides. By keeping in this view, it is just and proper to reverse the impugned Judgment and decree in this appeal and retrial is necessary."
Again in said paragraph the Trial Court held thus :-
" I would like to mention that as no full and fair ::: Downloaded on - 09/06/2013 16:34:40 ::: 9 opportunity has given to either side I am not touching to the merit and demerit of this Suit."
10. Therefore, it is apparent that, the lower Appellate Court without touching to the merits of the matter and without going into the merits of other points, passed the impugned Judgment and Order, thereby remanding the suit before the Trial Court for re-trial.
The Trial Court framed as many twelve issues for its consideration / determination. In said issues one of the important issue was whether the suit barred by law of limitation? In my opinion, the Judgment and Order of the Appellate Court is not sustainable in law.
The following Substantial questions of law falls for the consideration of this Court in the present Appeal.
i) Whether the lower appellate court while setting aside the judgment and decree of the trial court and remanding the matter back to the trial court, has followed the scope of Order 41 Rule 23, 23-A and 25 of the C.P.C. in the light of various pronouncements of the Hon'ble Supreme court taking a view that remand order cannot be passed as a routine affairs but only in exceptional cases ::: Downloaded on - 09/06/2013 16:34:40 ::: 10
ii) Whether the lower appellate court failed to follow the command of Order 41 Rule 23 and 23A that the remand should not be made as routine and the appellate court itself should decide the appeal one way or the other?
iii) Whether the lower appellate court has failed in its duties to formulate the points, adjudicate the issues, consider the rival submissions and take decision one way or the other by itself without remanding the matter to trial court as provided under sub-Sec. 2 of Section 107 of the C.P.C.?
iv) Whether the lower appellate court has set aside the well reasoned judgment and decree of the trial court without formulating the points and addressing all issues which felt for consideration of the trial Court?
v) Whether the Appellate Court has not considered the section 3 and Article 58 of the Limitation Act which prescribes the limitation for three years for the relief of declaration. In this case, the first sale-deed is in the year 1976 executed in favour of plaintiff. Defendant No. 2 and another sale-deed was executed in the year 1978 executed by defendant No. 2 defendant No. 1. In the light of this Whether the suit was barred by the law of ::: Downloaded on - 09/06/2013 16:34:40 ::: 11 limitation?
vi) Whether the Appellate Court was duty bound to see whether the suit of the plaintiff is within limitation?
11. In the present case as stated here-in-above, the Appellate court has not considered the law of limitation for filing the suit or any other point which are considered by the Trial Court extensively. That apart, the Appellate Court itself has observed that, without going into the merits and demerits of the matter the suit is remanded for the Trial Court for retrial. Therefore, such order passed by the Appellate Court is not sustainable in law. The lower Appellate Court is duty bound to adjudicate the issues which falls for consideration and more particularly, when the Appellate Court wants to remand the suit for retrial to the Trial Court. Sub Section 2 of Section 107 of the Civil Procedure Code read thus :-
"(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."
In my opinion, the lower Appellate Court itself would have considered the legal aspects involved in the matter. It was not that the ::: Downloaded on - 09/06/2013 16:34:40 ::: 12 lower appellate court was not empowered to adjudicate these legal points. It was not necessary to remand the matter back to the trial court on the legal aspects. Since the appeal is a continuous proceeding of the suit, it was open for the lower appellate court to exercise its jurisdiction and address the legal issues and all other issues felt for its consideration by framing necessary points and then decide the matter by one way or the other. The lower appellate court can do so under sub section (2) of Section 107 of C.P.C. However, the lower appellate court has failed in its duties to exercise its jurisdiction vested in it and rather chosen easier way to remand the matter back to the trial court.
12. In the light of above discussion made in foregoing paras, the Impugned Judgment and Order passed by the Ist Adhoc Additional District Judge, at Ambajogai, District Beed is quashed and set aside.
The Regular Civil Suit 7 of 1985 is restored to its original position.
13 In the light of the discussions made in the foregoing paragraphs, the impugned judgment and order dated 10th July, 2003 passed by the Ist Adhoc Additional District Judge, Ambajogai in Regular Civil Appeal No. 25 of 1993 is quashed and set aside. The Regular Civil Appeal No. 25 of 1993 is restored to its original file. The lower appellate court is directed to formulate the necessary points for its determination/consideration and adjudicate all those points and ::: Downloaded on - 09/06/2013 16:34:40 ::: 13 decide the same by giving full opportunity to the parties concerned.
The lower appellate court is directed to take into consideration the necessary evidence, documents and legal provisions. The parties are at liberty to agitate relevant issues involved in the matter and the lower appellate court can decide the matter itself. With these observations, this Appeal From order is allowed to the above extent and disposed of.
14 Civil application, if any, stands disposed of.
15 Record and proceeding of this case be sent back forthwith to the concerned Court.
(S.S. Shinde, J.) SDM* 65.03AO/301010 ::: Downloaded on - 09/06/2013 16:34:40 ::: 14 ::: Downloaded on - 09/06/2013 16:34:40 :::