Smt. Prag Devi (Since Deceased) ... vs Union Of India Thru' G.M., ...
2013 Latest Caselaw 2057 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 
First Appeal From Order No. 967 of 2013
 
Smt. Prag Devi  and others.................. Plaintiffs/Appellants.
 
Vs.
 
Union of India through General Manager Northern Railway, Baroda House, New Delhi.....................................................................Defendant/Respondent.
 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Madhav Jain, learned counsel for the appellants and Sri Govind Saran, learned counsel appearing on behalf of the respondent.

By means of the present appeal, the appellants are challenging the order of the Additional District Judge, Court No. 1, Firozabad dated 15.1.2013 by which he has remanded back the matter to the trial court to decide the suit no. 90 of 1988 afresh.

The appellants were the plaintiffs in the suit. They have filed the suit, being suit no. 90 of 1988 for possession over the suit property being land of Khasra plot no. 349 having area .28 acre situated at Mehrabad, Tehsil Sikohabad presently in district Firozabad. The suit was filed with the assertion that the predecessor Sri Vishwamitra was the Zamindar whose name was duly recorded in the Khewat as being Zamindar. Since the land of Mehrabad fell within the municipal limit of the Municipal Board, Shikohabad much before the date appointed within the meaning of U.P. Zamindari Abolition and Land Reforms Act, the right title of the predecessor of the plaintiffs/appellants as being Zamindar is being protected. Since the said land of said plot was/is being used for the purposes other than agricultural purposes hence the provisions of U.P. Urban Area Zamindari Abolition and Land Reforms Act has no application in relation to the said land. In the month of March, 1984, the officials of the respondent no. 1 in the garb of raising construction of boundary wall over the Railway land encroached upon the land of the plaintiffs/appellants without any right title and authority. The request made by the plaintiffs/appellants to remove their unauthorized occupation has not been taken notice and when they did not receive any response, filed the suit. The suit has been contested by the respondent, issues were framed and evidences have been adduced and after hearing both the parties by the judgment and order dated 26.3.2007, the Civil Judge (Junior Division), Firozabad decreed the suit. Being aggrieved by the said judgment and order, the respondent filed an appeal, being appeal no. 16 of 2007. By the impugned order, the appeal has been allowed and the matter has been remanded back.

The appeal has been remanded back mainly on the ground that issue nos. 11 and 12 were related to the limitation and the suit being barred by Section 49 of the Consolidation Act have not been decided and further the trial court has erred in not taking any decision on issues no. 3, 6, 8 & 9.

Learned counsel for the appellants submitted that there is no justification in remanding back the matter to the trial court for decision afresh. So far as issue nos. 11 and 12 are concerned, he submitted that issue nos. 11 and 12 have been framed by the trial court vide order dated 25.3.2003 and 20.5.2003, consequent to the amendment allowed in the written statement. In respect of such issues, the evidences have been led by the parties and, therefore, these issues could have been decided by the appellate court on the basis of the evidences on record. In any view of the matter, if the appellate court is of the view that the evidences are not sufficient, they could have been taken by the appellate authority itself or would have asked the trial court to take the evidence in respect of issue nos. 11 and 12 and decide the same and sent back the matter to the appellate authority to decide the appeal instead of remanding back the entire matter to the trial court to decide afresh. He further submitted that issue nos. 3, 6, 8 and 9 are concerned, it is wrong to say that the same have not been decided. The trial court has categorically dealt with the issues and held that burden lies upon the defendant to prove and during the course of argument, the same have not been pressed by the defendant and, therefore, these issues have been decided in favour of the plaintiffs.

Reliance is placed on the decision of the Apex Court in the case of P. Purushottam Reddy and another Vs. M/s. Pratap Steels Ltd., reported in AIR 2002 Supreme Court 771.

Learned counsel for the respondent submitted that the appellate authority has remanded back the matter in exercise of power under Rule 23A, Order 41 of the C.P.C. and, therefore, there is no error in the impugned order.

I have considered rival submissions and perused the impugned order.

The Apex Court P. Purushottam Reddy and another Vs. M/s. Pratap Steels Ltd. (supra) has laid down the principle of remand. On consideration of Rules 23A and Rule 25, Order 41 C.P.C. which reads as follows :

"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 C.P.C. Rule 23 applies when the trial court disposes of the entire suit by recording its finding 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 inasmuch 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 therefor 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 case could exercise its inherent jurisdiction under Section 151 of the C.P.C. to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses 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 if 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 dehors 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."

In my view, if the evidences are available on record in respect of issue nos. 11 and 12, the same ought to have been considered and issue nos. 11 and 12 ought to have been decided by the appellate Court even if the same have not been decided by the trial court to avoid the delay and in case if the evidences are not on record, in stead of remanding back the matter, the appellate authority either have entertained the additional evidences or may have asked the trial court to take the evidences in respect of issue nos. 11 and 12, express its opinion and refer back the matter to the appellate authority for decision within the time bound period. So far as issue nos. 3, 6, 8 and 9 are concerned, the appellate authority appears to have not appreciated the observations made by the trial court in this regard. In respect of these issues, the trial court has categorically recorded the findings that the burden lies upon the defendant and during the course of hearing such issues have not been pressed by the defendant. Thus, in my opinion, unless the defendant-respondent is able to satisfy the Court that he has pressed the issues and the findings in this regard recorded by the trial court are wrong and perverse, the question of further adjudication of these issues does not arise. Therefore, the remand of the case by the appellate authority with the direction to decide the issue nos. 3, 6, 8 and 9 is not justified.

It is the settled principle of law that the remand of the case causes delay and therefore, should be avoided and power of remand should rarely be exercised.

In view of the above, the appeal is allowed. The order dated 15.1.2013 passed in Appeal No. 16 of 2007 is set aside and the matter is remanded back to the appellate authority to decide the appeal afresh in the light of the observations made above. The appellants are directed to file certified copy of this order within a period of four weeks and the appellate authority is directed to decide the appeal expeditiously in accordance to law.

Dated: 14th May, 2013

OP