Pohap Singh vs Pardeep

Punjab-Haryana High Court

Pohap Singh vs Pardeep on 6 May, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                  Neutral Citation No:=2024:PHHC:063063




SAO-16-2024(O&M)

                                                                           1

144         IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                             SAO-16-2024(O&M)
                                             Date of decision : 06.05.2024

Pohap Singh                                                 ...Appellant

                                Vs.

Pardeep                                                     ...Respondent

CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:    Mr. Sanjay Mittal, Advocate
            for the appellant.

            Mr. Ranvijay Singh, Advocate
            for the respondent.

                  ***
ANIL KSHETARPAL, J. (Oral)

1. In this second appeal, the appellant (defendant) in the suit assails the correctness of the First Appellate Court's order remanding the case back to the trial Court for fresh decision after permitting the plaintiff to amend the plaint.

2. Heard the learned counsel representing the parties at length and with their able assistance perused the paper-book.

3. The respondent filed a suit for possession by way of specific performance of the agreement to sell, which was dismissed by the trial Court on 19.09.2017. The plaintiff filed an appeal. During the pendency of the appeal, he filed an application for permission to amend the plaint in order to seek alternative relief of refund of earnest money, which has been allowed by the First Appellate Court. This Court has not called upon to decide as to 1 of 4 ::: Downloaded on - 09-05-2024 22:24:40 ::: Neutral Citation No:=2024:PHHC:063063 SAO-16-2024(O&M) 2 whether the First Appellate Court was correct in permitting the plaintiff to amend the plaint.

4. Learned counsel for the appellant submits that the First Appellate Court has erred in remanding the case back to the trial Court only on this aspect.

5. Learned counsel representing the respondent submits that the First Appellate Court has enabling power.

6. This Court has considered the submissions made by the learned counsel representing the parties.

7. In 'P.Purushottam Reddy and Another v. Pratap Steels Ltd'. (2002) 2SCC 686, the Hon'ble Supreme Court while interpreting Order XLI Rule 23-A of the Code of Civil Procedure laid down as under:-

"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate 2 of 4 ::: Downloaded on - 09-05-2024 22:24:41 ::: Neutral Citation No:=2024:PHHC:063063 SAO-16-2024(O&M) 3 case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided."

8. In view of the aforesaid observation, the impugned order, 3 of 4 ::: Downloaded on - 09-05-2024 22:24:41 ::: Neutral Citation No:=2024:PHHC:063063 SAO-16-2024(O&M) 4 remitting the matter back to the trial Court is not sustainable. Hence, the same is set aside. The appeal filed by the plaintiff is restored to its original number. However, this Court has not set aside the order permitting the plaintiff to amend the plaint. It shall be open to the defendant to request the First Appellate Court to frame the distinct issue on the question of limitation, which shall be considered by the First Appellate Court while deciding appeal.

9. The first appeal is restored to its original number and the parties through their counsel are directed to appear before the First Appellate Court on 30.05.2024.

10. The revision petition stands disposed of.

                                                       (ANIL KSHETARPAL)
06.05.2024                                                  JUDGE
neeraj
             Whether speaking/reasoned :         Yes          No
             Whether Reportable :                Yes          No




                                      4 of 4
               ::: Downloaded on - 09-05-2024 22:24:41 :::