Deshanter Goel @ Deshanter And ... vs Dr. Nalnish Kumar And 5 Others
2022 Latest Caselaw 408 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 10.03.2022 
 
   Delivered On:- 04.04.2022 
 
Case :- FIRST APPEAL FROM ORDER No. - 3493 of 2017
 
Appellant :- Deshanter Goel @ Deshanter And Another
 
Respondent :- Dr. Nalnish Kumar And 5 Others
 
Counsel for Appellant :- Kshitij Shailendra
 
Counsel for Respondent :- Sandeep Kumar Choudhary,Ajay Kumar Sharma,Kashif Gilani,M.N. Singh
 

 
Hon'ble Siddharth, J.

1. Heard Sri Kshitij Shailendra, learned counsel for the appellants and Sri Sandeep Kumar Choudhary, learned counsel appearing on behalf of respondents.

2. The First Appeal From Order has preferred against the judgment and order dated 27.10.2015 passed by Additional District Judge, Court No. 1, Saharanpur in Civil Appeal No. 4 of 2014 (Dr. Nalneesh Kumar and another Vs. Deshantar Goel @ Deshanter and another) arising out of Original Suit No. 124 of 2010.

3. The brief facts of the case are that the plaintiffs-appellants instituted an Original Suit No. 124 of 2010 praying for a decree of cancellation of registered sale deed dated 28.07.1987 executed by the plaintiff-appellant no. 2 in favour of defendant-respondent no. 2. Issue no. 4 and issue no. 5 framed in the suit were decided on 22.12.2010 and 23.12.2010 respectively and thereafter the defendant-respondents absented themselves from the proceedings. They led no evidence before the trial court. The statements of P.W-1 and P.W-2 were recorded and the opportunity to cross-examine them by the defendants was closed since the defendants did not appeared before the trial court for the above purpose. By the judgment and decree dated 18.12.2013 the trial court decreed the suit of the plaintiffs and cancelled the sale deed dated 28.07.1987. Against the aforesaid judgment and decree of trial court, two civil appeals were preferred being Civil Appeal No. 4 of 2014 and Civil Appeal No. 89 of 2014 (Dr. Nalnish Kumar and another Vs. Deshantar Goyal @ Deshanter and another) by the defendants before the first appellate court. The Additional District and Sessions Judge, Court no. 1, Sahjahanpur by the judgment and order dated 27.10.2015 allowed the Civil Appeal No. 4 of 2014 and after setting aside the judgment and decree dated 18.12.2013 of the trial court remanded the suit to the trial court for deciding the same afresh. The copy of this judgment in Civil Appeal No. 4 of 2014 was directed to be kept on the record of Civil Appeal No. 89 of 2014.

4. Learned counsel for the plaintiffs-appellants has submitted that the first appellate court has wrongly remanded the matter to the trial court exercising powers under Order 41, Rule 25 C.P.C. In fact the powers under Order 41, Rule 23-A C.P.C has been exercised by the first appellate court. The first appellate court has committed illegality in setting aside the decree which power cannot exercised under Order 41, Rule 25 C.P.C which requires framing of an issue / issues and remanding the same to the trial court for decision and sending it back to the appellate court for pronouncing final decision. The civil appeal remains pending before first appellate court while the trial court decides the issue / issues remanded to it for re-trial.

5. The view of the Lower Appellate Court that the Trial Court did not framed proper issues and, therefore, its judgment dated 8.12.2013 is illegal, is totally misplaced in view of the fact that the issues were framed by the Trial Court on 22.12.2010 after hearing the parties represented through their respective counsels and issue no. 4 and 5 were also decided on 22.12.2010 and 23.12.2010 respectively after hearing the respective counsels for the parties. Thereafter, at no point of time, any request was made for framing additional issues, either under Order 14, Rule 5 C.P.C. or otherwise. On the contrary, the defendants-respondents disappeared from the proceedings after about 2 years, w.e.f., 15.10.2012, whereafter they never turned up either for leading evidence or for cross examining the plaintiffs' witnesses or to argue the matter finally. Under these circumstances non-framing of one or the other issues could not be a ground for reversal of the decree passed by the Court below.

6. The view taken by the Court below that the suit was barred by limitation, is absolutely perverse and unsustainable inasmuch as limitation for cancellation of an instrument is provided under Article 59 of the Schedule of the Limitation Act and the period prescribed is 3 years which commences when the facts entitling the plaintiff to have instrument cancelled first become known to him. In the present case, the plaint of the suit as well as other material available on record clearly demonstrates that the plaintiffs came to know about the execution of fabricated sale deed dated 28.07.1987 in November & December, 2009 after obtaining the certified copies of extracts from Khatauni. The factum of the knowledge was not even disputed in the written statement filed by the defendants no.l and 2 and, therefore, it was not open for the Lower Appellate Court to even form a prima facie opinion about the alleged bar of limitation.

7. The Hon'ble Supreme Court as well as this Hon'ble Court have, from time to time, laid down that the Courts must avoid unnecessary remand and a remand order may be passed only when the circumstances are of such nature under which the remand is the only option available.

8. In the present case, the Appellate Court, by virtue of the power conferred by Section 107 C.P.C. read with order 41 Rules 31 and 33 C.P.C., was itself empowered to determine any question of fact and law and, if necessary, permit the parties to lead evidence before it. This power was neither exercised by the Appellate Court nor even did it care to see and examine the conduct of the defendants who did not made any prayer before the Lower Appellate Court to lead evidence before it. Hence, all the circumstances lead to a single conclusion that the attempt of the defendants was to somehow deprive the plaintiffs from the fruits of the decree which they got after perusing their claims with due diligence for more than 3 years before the Trial Court.

9. Once, the orders dated 03.04.2013 and 17.04.2013 closing opportunity of the defendants to cross-examine the P.W.1 and P.W.2 respectively attained finality and were never sought to be recalled, the case would be deemed to have proceeded ex-parte against the defendants and, therefore, the final decree cannot be faulted on this score.

10. The view taken that the suit appears to be barred by the provisions of U.P. Zamindari Abolition and Land Reforms Act is wholly unsustainable inasmuch as the suit for cancellation of an instrument obtained by fraud and fabrication always lies before the Civil Court not before the Revenue Court.

11. Learned counsel for the defendants-respondents has submitted that the trial court decided the suit without framing appropriate issues and without affording opportunity to the defendants-respondents to lead evidence and hence the first appellate court has remanded the suit for redecision after framing appropriate issues in the light of observations made by the appellate court, after affording opportunity of hearing to the parties and therefore no prejudice has been caused to the rights of the plaintiffs-appellants and they can contest the suit before the trial court and raise all their objections before it.

12. After hearing the rival contentions, this court finds that the order 41, Rule 25 C.P.C provides as follows :-

"25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from - Where the Court from whose decree the appeal is preferred 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 within such time as may be fixed by the Appellate Court or extended by it from time to time."

13. Counsel for the plaintiffs-appellants has relied upon the judgment of the Apex Court in the case of P. Purushottam Reddy and another vs. M/s Pratap Steels Limited, AIR 2002 SC 771 (para - 10) which has 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 1SSue 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.

14. In the case of Ram Swaroop Singh Vs. State of U.P. and others, 2011 (9) ADJ 500 (Paras- 8 & 9) this court has deprecated the order of remand on frivolous grounds as follows :-

In Ashwinkumar K. Patel v. Upendra J. Patel and others, AIR 1999 SC 1125, the Apex Court held that even the High Court should not remand a case under Order 41 Rule 23 C.P.C. To lower Court merely if some reasoning of the lower Court is wrong, since it leads to unnecessary delay and cause prejudice to the parties. If the material is available, the High Court should decide the matter itself since it can consider all the aspects. The relevant observations as contained in para-7 is reproduced as under:

"In out view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified."

15. In the case of Zarif Ahmad (dead) though L.R.s & others vs. Mohd. Farooq, 2015(2) AWC 2052 (SC) (Para-13) is to the same effect as follows :-

"It is not a healthy practice to remand a case to trial court unless it is necessary to do so. Only in rare situations remand can be ordered, e.g., when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues."

16. In the case of Smt. Prag Devi and others vs. Union of India and others, reported in 2013 (6) ADJ (342) (paragraphs - 9, 10 and 11) this court has held that order remand under Order 41, Rule 25 C.P.C is an order of limited remand as follows :-

9. The Apex Court P. Purushottam Reddy and another vs. M/s. 3 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 23-A in Order 41 of the Code of Civil Procedure by C.P.C Amendment Act, 1976, there was 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 contemplate 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 therefore of the trial court, are required to be returned to the appellate court."

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............... An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."

11. 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.

17. In the case of Municipal Corporation, Hyderabad vs. Sunder Singh, 2008(4) AWC 3414 (SC) (Para 19 to 21) the Apex Court has held as follows :-

"The scope of remand is extremely limited and it cannot be passed on Ipse dixit of the Court."

18. From the above consideration it is clear that under Order 41, Rule 25 C.P.C applies when the appellate court finds that the trial court has failed to frame or try an issue which was relevant for decision of the suit. The first appellate court has been vested with the powers of limited remand under Order 41, Rule 25 C.P.C for deciding the issue which are referred by the appellate court for trial and the trial court is under obligation to decide them and return the same to the appellate court along with its finding and the evidence led by the parties before it. The complete remand of the suit for trial is not contemplated under Order 41, Rule 25 C.P.C. The first appellate court has failed to consider the requirements of Order 41, Rule 25 C.P.C and has passed the judgment and order dated 27.10.2015 setting aside the judgment and decree dated 18.12.2013 of the trial court which cannot sustained. The order dated 27.10.2015 passed by the Additional District Judge, Court No. 1, Saharanpur in Civil Appeal No. 4 of 2014 and Civil Appeal No. 89 of 2014 are set aside. The first appellate court is directed to decide the above civil appeals as per the requirements of Order 41, Rule 25 C.P.C discussed hereinabove.

19. The First Appeal From Order is allowed.

20. However, there shall be no order as to costs.

Order Date :- 04.04.2022

Rohit