NEUTRAL CITATION
C/AO/187/2022 JUDGMENT DATED: 22/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 187 of 2022
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In
R/APPEAL FROM ORDER NO. 187 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KARABHAI RAMBHAI BHUTIYA
Versus
RAJUBHAI RASIKCHANDRA DALVADI
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Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Appellant(s) No. 1
MS. NIYATI K JUTHANI(7014) for the Respondent(s) No. 1
MRS SANGITA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357)
for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 22/08/2023
ORAL JUDGMENT
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NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined
1. Challenge in this Appeal from Order, under Order 43 Rule 1(u) of the Code of Civil Procedure, is the judgment and order dated 21.10.2022 passed below Exh. 27 in Regular Civil Appeal No. 82 of 2018, whereby, the learned 4th Additional District Judge, Vadodara, while deciding the Appeal from the judgment and decree of the trial Court, reverse the judgment of the trial Court and remanded the suit to the trial Court for its retrial.
2. The brief facts necessary for the disposal of present Appeal from Order are as follow:
2.1 The plaintiff - respondent no. 2 herein filed a suit being RCS No. 2198 of 2015, against the owner of the land namely Raju Dalwadi and second purchaser - present appellant Karabhai Rambhai Bhutiya for cancellation of sale deed allegedly executed in favour of the appellant herein and declaration to the effect that, the said sale deed is not binding to her.
2.2 The land owner Raju Dalwadi - defendant no. 1 appeared before the trial Court through his lawyer but neither he had filed a written statement nor contested the suit on merits.
2.3 The appellant - Karabhai Bhutiya - original defendant no. 2 filed his written statement and contest the suit.
2.4 It is the case of the plaintiff that the land bearing block No. 522 of village : Por, Dist.: Vadodara, vide registered agreement to Page 2 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined sale dated 11.10.2005 was sold to her with an amount of consideration of Rs.1,60,000/- and out of the said amount, she has paid Rs.1,50,000/- at the time of execution of the agreement to sale. The owner Raju Dalwadi had also executed a power of attorney of the said land, in favour of husband of the plaintiff. Meanwhile, vide registered sale deed dated 07.10.2006, the said land was sold to present appellant Karabhai Bhutiya by one Merubhai Chauhan, power of attorney of the land owner. Thereafter, on 05.12.2006, the said land by way of registered sale deed finally sold to the plaintiff. In these circumstances, the suit for cancellation of sale deed dated 07.10.2006 came to be filed against the original defendants.
2.5 As mentioned above, the respondent no. 2 - original land owner though served, did not contest the suit on merits, whereas, the transferee of the land i.e. present appellant had contested the suit, claiming priority rights created by transfer as provided under Section 48 of the Transfer of Property Act, 1982.
2.6 The learned trial Court, on the basis of pleadings, framed the following issues :
"ISSUES :1. Whether the plaintiff proves that the defendant agreed to sell the said property to him for a consideration of Rs.1,60,000/- and after accepting Rs.1,50,000/- as an earnest money, has executed Page 3 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined registered sale deed on 7/12/2006 ?
2. Whether the plaintiff proves that registered sale deed has been executed in his favour and the same is legal and valid?
3. Whether the plaintiff proves that registered sale deed executed in favour of defendant no.2 is void?
4. Whether the plaintiff is entitled to get the relief as claimed in para-10 of the suit?
5. Whether the defendant proves that the suit is barred by law of limitation?
6. What order and decree ?"
2.7 The plaintiff and his witness were examined at Exhs. 46 and 80 before the trial Court. The plaintiff in the support of his claim, have relied the documents, mainly registered agreement to sale dated 11.10.2005 at Exh. 52, possession receipt Exh. 54, registered sale deed executed in his favour dated 05.12.2006 at Exh. 58. The present appellant original defendant no. 2 was examined at Exh. 85 and relied on the unregistered agreement to sale Exh. 90, registered sale deed allegedly executed in his power by the power of attorney dated 07.10.2006 at Exh. 91 and other revenue records.
Page 4 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined 2.8 The learned trial Court, after hearing the parties and considering
the documentary evidence on record, came to conclusion that the plaintiff failed to prove that the registered sale deed dated 07.10.2006 is void and she is not entitled for a declaration about the binding effect of the said sale deed.
2.9 Being aggrieved with the aforesaid dismissal of the suit, the original plaintiff, challenge the judgment and decree by preferring First Appeal before the District Court and same was registered being Regular Civil Appeal No. 82 of 2018. The learned first Appellate Court after considering the evidence adduced by the parties, by setting aside the judgment of dismissal of the suit, remanded the matter to the trial Court for retrial, on the ground that, evidence on record is not sufficient to dispose of the matter, for the reason that the power of attorney Exh. 92 in favour of Merubhai Chauhan executed by the land owner has not been proved and to decide the issue of priority right of the parties over the property, the evidence adduced by the parties are not sufficient.
3. Aggrieved by the order of the first Appellate Court, the original defendant no. 2 has preferred this Appeal from Order, stating inter- alia, that, the first Appellate Court erred in law by remanding the matter as the order passed in a casual manner and is dehor of the Rule 23, 23A of Order 41 of the CPC.
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4. This Court has heard counsel Mr. Dhairyawan Bhatt, Ms. N.K.
Juthani and Ms. Sangita Pahwa, for Thakkar and Pahwa Advocates.
5. The counsel appearing for the appellant, Mr. Dhairyavan Bhatt has submitted that, the first Appellate Court ought not to have remanded the matter for retrial as, there is sufficient evidence on record to dispose of the matter on its own merits and proper course is to follow Rule 24 of Order 41 of the CPC which provides that where the evidence on the record is sufficient to enable the court to pronounce the judgment, the court concerned shall dispose of the matter on its own merits. That, in the facts of the present case, the disputed two registered sale deeds and one registered agreement to sale as well as the copy of the power of attorney are on record and as such, neither of the parties have disputed its authenticity and therefore, based on the available documentary evidence, the first Appellate Court could have decided the issue of law, i.e. priority right created by different sale deeds. That, the suit in this case was not decided on preliminary issue and therefore, Rule 23 of Order 41 is not attracted and so far, Rule 23A of Order 41 is concerned, on irrelevant consideration, the satisfaction arrived at by the first Appellate Court that the evidence on record is insufficient to decide the matter on merits and therefore, the impugned judgment and order passed by the first Appellate Court is bad in law, as, it has been passed dehors the mandatory provisions of Rule 23, 23A and 24 of Order 41 of the Code.
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6. In support of aforesaid contentions, learned counsel Mr. Bhatt, has relied on the following decisions :
(i) 2023 1 GLH 582, in case of Sirajudheen Vs. Zeenath & Ors.;
(ii) 2023 Live Law (SC)112, in case of Arvind Kumar Jaiswal (D) Thr. Lr. Vs. Devendra Prasad Jaiswal Varun;
(iii) 2020 (0) AIR(SC) 3102 in case of Shivakumar & Ors Vs. Sharanabasappa & Ors;
(iv) 2022 4 Supreme 224, in case of Nadakerapppa since deceased by Lrs and other Vs. Pillamma Since Deceased by Lrs. And others;
7. In the aforesaid contentions and ratio laid down by the Apex Court on the issue of remanding the case by the Appellate Court, Mr. Bhatt, learned counsel has submitted that while exercising inherent powers, the first Appellate Court has acted arbitrarily and contrary to law and findings for the decision are palpably incorrect and are wholly untenable and therefore, he urged that, the case is made out for interfere with the judgment impugned passed by the first Appellate Court.
8. Ms. N.K. Juthani, learned counsel appearing for and on behalf of the land owner Raju Dalwadi has submitted that, due to unavoidable circumstances, the defendant no. 1 did not contest the suit and therefore, he could not adduce proper and sufficient evidence to justify the alleged transactions. Thus, she prays that, Page 7 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined the first Appellate Court has rightly remanded the matter for further adjudication of the suit proceedings.
9. Mrs. Sangita Pahwa, learned counsel appearing for and on behalf of the original plaintiff - respondent no. 2 herein, has submitted that, the first Appellate Court after scrutinizing the oral as well as documentary evidence, rightly come to the conclusion that, sale deed in favour of the appellant is required to be proved and the power of attorney Mr. Chauhan is important witness to throw light on the issue that why he had been given authority to act for and on behalf of the land owner and under what circumstances, the second registered sale deed executed in favour of the appellant herein. She further submitted that, the land owner - original defendant no. 1 was remained absent before the Court and his evidence is also necessary to decide the controversy between the parties and the issue of priority of rights created by different transferred documents. Thus, therefore, she submitted that, the first Appellate Court finds that, retrial is required as the evidence on record is not sufficient to dispose of the matter for the reasons recorded by the court in it judgment in para-25, 26 and 36.
10. In the aforesaid contentions and relying on the decision of (2021) 11 SCC 277, in case of Shivkumar and others Vs. Sharanabasappa and others, she would urged that, where the first Appellate Court considered necessary for a retrial, observing that the available evidence is not sufficient to dispose of the matter, it cannot be said that, the power has not been properly exercised.
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11. Mrs. Sangita Pahwa, learned counsel for the original plaintiff -
respondent no. 2 herein, relying on the judgment of the Supreme Court delivered in the case of A. Shanmugam Vs. Arya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalainai Sangam, represented by its President (2012) 6 SC 430, submitted that the intention behind remanding the matter for the trial court is to discern the truth from the pleadings, document and arguments from the parties, as trial is a voyage of discovery in which truth is the quest. Thus, therefore, the first Appellate Court has exercised its powers with an object to sub-serve the cause of justice and for getting the evidence in aid of just decision of the case.
12. In view of the aforesaid contentions, the learned counsel Mrs. Pahwa submitted that, by resorting the provision Rule 23A of Order 41 of the Code, the first Appellate Court has in the interest of justice and for just decision of the case, reversed the decree and remanded the case. Thus, therefore, she urged that, no case is made out to interfere with well reasoned order and the preset Appeal may not be entertained.
13. Having heard the learned counsel for the respective parties and on perusal of the judgment impugned, the issue falls for consideration of this court, whether the first Appellate Court justified in remanding the matter?
14. Before adverting to the issue, it is necessary to clarify the settled legal position on the aspect of filing the Appeal from Order or Page 9 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined Second Appeal against the order of remand passed by the first Appellate Court. Order 43 Rule 1(u), provides limited powers and under this provision, only legality and correctness of remand order passed by the first Appellate Court can be examined but not beyond that. The Apex Court in the case of J. Balaji Singh Vs. Diwakar Cole, (2017) 14 SCC 207, held that, when Appeal from Order is filed under Order 43, the court lose their jurisdiction to decide appeal on merits, as the High Court having a limited power to examine the issue relating to remand order.
15. In the facts of the present case, the appellant raised the other grounds in addition to the issue of remanding the matter by the first Appellate Court. Thus, in view of the settled position of law, this Court is not deciding the merits of the appeal and only confine its jurisdiction to decide the legality and correctness of the remand order passed by the first Appellate Court.
16. In the case on hand, after dismissal of the suit, an Appeal thereof filed by the original plaintiff, the first Appellate Court by invoking its inherent powers as provided under Rule 23 and 23A of Order 41 of the Code, reverse the decree and remanded the suit to the trial Court to decide afresh.
17. The first Appellate Court in its discretionary powers under Rule 23 or Rule 23A of Order 41 of the Code, unless the conditions precedents are satisfied. Rule 23 can pass an order to remand a case in certain circumstances. It provides that, where the court from whose decree an appeal is preferred, as disposed of the suit upon a Page 10 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined preliminary point and decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case, so remanded.
18. The statutory provision Rule 23A of Order 41 empowers the court to remand a case, where by a decree, the case was disposed of, otherwise than on a preliminary point. This Rule contemplates the decision of a suit on all the issues, including preliminary issue, if any, and further contemplates the remand of a suit, after setting aside all those findings and the power can be exercised only after Appellate Court records the findings that retrial is considered necessary in the interest of justice.
19. In view of the aforesaid statutory provisions and considering the findings recorded by the first Appellate Court for remanding the case to the trial Court for its retrial, this Court is of view that, the first appellate Court ought not to have remanded the suit and fell in error while reversing the decree of dismissal of the suit. The first Appellate Court is misdirected himself while passing the order of remand. The issue raised in the suit is very limited and it is a neat question of law to decide the 'priority of rights' created by multiple transfers. On careful perusal of the oral as well as documentary evidence led before the trial Court, it appear that neither of the parties have challenged the documentary evidence like registered agreement to sale Exh. 52, registered sale deed dated 11.12.2006 Exh. 58 and the registered sale deed dated 17.02.2006 executed in Page 11 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined favour of appellant herein Exh. 91 as well as the copy of power of attorney Exh. 92. The case of the plaintiff was that, after his purchase of the suit land, by way of registered agreement to sale, the land in question was sold to appellant herein and thereafter, it was sold to her by way of registered sale deed. Thus, it was her case that, in view of the registered agreement to sale, which was prior in point of time, the subsequent sale deed in favour of appellant would not bind to her and the benefit of priority of right as provided under Section 48 of the Transfer of Property Act would not be available to the appellant herein.
20. For the aforesaid reasons, this Court is of the view that, Rule 23 of Order 41 is not attracted in the present case, as the suit was not disposed of upon a preliminary point and same was disposed of after considering all the issues and material placed on record. So far as applicability of Rule 23A of Order 41 is concerned, this Court is of considered view that, before the first Appellate Court, it was not the case of the original plaintiff respondent no. 2 herein that, the evidence adduced by the trial Court is not sufficient and unsatisfactory and therefore, they are seeking the remand of the matter to the trial Court for denovo trial. Before the first Appellate Court, both the parties have submitted their written submission on merits, without their being raised any issue about the insufficiency of the evidence. Having regard to the observations made by the first Appellate Court in the judgment impugned, this Court is of the view that, if the land owner respondent no. 1 despite his appearance did not contest the suit, then, the first Appellate Court Page 12 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined after considering the provisions of the Evidence Act, could have raise the adverse inference on the point and decide the Appeal on its merits in accordance with law. As discussed hereinabove, the issue required to be decided whether what would be the effect of multiple transfers, as provided under Section 48 of the T.P. Act and it could be decided by the first Appellate Court from the available documents and oral evidence adduced by the parties. When the authenticity and legality of the power of attorney executed in favour of one Mr. Chauhan, who had executed a sale deed in favour of the appellant, is not in questioned by either of the parties, then, the copy of the power of attorney could be considered to decide the priority rights. It needs to be noted that, except issue of limitation, no any issues framed against the defendant for proving his title over the property. Thus, therefore, the observations made for remanding the matter by the first Appellate Court are contrary to the evidence on record as the burden is on the plaintiff to prove the issues framed by the Court for which, there is sufficient evidence on record to decide the priority right of the parties over the suit property.
21. The contentions raised by the learned counsel for original defendant No.1 that, he being the land owner, was unable to contest the suit due to financial crunch and therefore, the court has rightly remanded the case so that, he can adduce his evidence. This contention cannot be accepted. The land owner sold the said land twice to the parties and pocketed the entire amount and intentionally did not contest the suit. It needs to be noted that the Page 13 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023 NEUTRAL CITATION C/AO/187/2022 JUDGMENT DATED: 22/08/2023 undefined plaintiff has not prayed any relief against the land owner.
22. It is the contention that, the first Appellate Court has rightly remanded the suit to redecide the issues, as the court finds that the evidence necessary for proper determination of the suit had not been brought on record and evidence on record is insufficient to arrive a proper findings to decide the priority rights created by transfers. This Court finds no force in the contentions, as before the trial Court, sufficient opportunity was being given to the plaintiff to adduce the evidence and after considering the evidence and arguments advanced by the counsel, the trial Court disposed of the suit. In the appeal against the dismissal of the suit, the original plaintiff never raised the question about the insufficiency of the evidence led before the court and at no point of time, it was argued that, matter may be remanded back, as the evidence of power of attorney and land owner Mr. Dalwadi is necessary for proper determination of the suit.
23. For the aforestated reasons, this Court is of the view that, failure on the part of the plaintiff or defendants to adduce the evidence, as observed by the first Appellate Court, cannot be a ground to remand the case. On the contrary, as noticed above, the evidence is sufficient to decide the priority rights. Thus, the findings recorded for arriving at the conclusion of remanding the case to the trial Court are palpably incorrect and contrary to law and are wholly untenable and thus, therefore, this Court finds that the first Appellate Court was not justified in remanding the suit to the trial Court for its retrial.
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24. Accordingly, the impugned judgment dated 21.10.2022 cannot be sustainable in law and hence it is set aside and the matter is remitted to the first Appellate Court to decide the appeal on its own merits in accordance with law. The Regular Civil Appeal No. 82 of 2018 is restored to its original file.
25. The observations made hereinabove are tentative in nature and are confined to decide the issue of remand only.
26. In view of the decision disposal of main matter being Appeal from Order, no order in Civil Application and is disposed of accordingly.
(ILESH J. VORA,J) P.S. JOSHI Page 15 of 15 Downloaded on : Sun Sep 17 02:04:23 IST 2023