Sanjay Kumar Modi And Another vs Udairaj And Another
2023 Latest Caselaw 16902 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(AFR)
 
Neutral Citation No. - 2023:AHC-LKO:38144
 

 
Court No. - 19
 

 
Case :- FIRST APPEAL FROM ORDER No. - 158 of 2023
 

 
Appellant :- Sanjay Kumar Modi And Another
 
Respondent :- Udairaj And Another
 
Counsel for Appellant :- Satish Gulati,Sarvesh Kumar Tiwari,Sudeep Kumar
 
Counsel for Respondent :- Shyam Mohan Pradhan,Brijesh Kumar
 
		Alongwith
 
		Case :- FIRST APPEAL FROM ORDER No. - 162 of 2023
 

 
		Appellant :- Sanjay Kumar Modi And Another
 
		Respondent :- Udairaj And 2 Others
 
		Counsel for Appellant :- Satish Gulati,Sarvesh Kumar Tiwari,Sudeep 			Kumar
 
		Counsel for Respondent :- Shyam Mohan Pradhan
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Heard Sri Sudeep Kumar, learned counsel for the appellants and Sri Brijesh Kumar Saxena, learned counsel who has put in appearance on behalf of the respondent no. 1 in F.A.F.O.No. 158 of 2023 and F.A.F.O. No. 162 of 2023. The learned counsel for the appellant submits that another appeal bearing F.A.F.O. No. 162 of 2023 which is connected also arises from the same judgment of remand and as such both the appeals can be considered and decided together.

2. The instant F.A.F.O. has been preferred under Order 43 Rule (1) (u) C.P.C. assailing the order of remand. The learned counsel for the appellants in both the cases is assailing the judgment and decree passed by the Lower Appellate Court dated 18.04.2023 whereby two civil appeals bearing No. 10 of 2022 and 11 of 2022 have been allowed and the matter has been remanded to the Trial Court for decision afresh.

3. Sri B.K. Saxena, learned counsel appearing for the respondent no.1-Udairaj in both the appeals submits that since the only legal issue regarding sufficiency of grounds for remand is involved, accordingly, the matter can be heard at the admission stage itself. It is in this view of the matter that the Court has heard the learned counsel for the parties at the admission stage and with the consent of learned counsel for the parties disposes of the both the appeals by this common judgment.

4. Certain facts which are relevant for a proper adjudication of the aforesaid appeals are being noticed hereinafter:-

5. The property in question which is the subject matter of the dispute is a three storied house situate in Govind Bagh, Balrampur, Pargana, Tehsil and District Balrampur. The said property was initially recorded in the name of Smt. Sushila Devi wife of Durga Prasad. The appellant no. 1 namely Sanjay Kumar was the tenant of the said premises since the time of Smt. Sushila Devi. On 25.06.2001, Smt. Sushila Devi executed a registered sale deed in respect of the entire property in favour of Reshu Gupta who was a minor through his guardian and father Ram Shankar Gupta (respondent no. 2 in the connected F.A.F.O. No. 162 of 2023 but is not a party in F.A.F.O. No. 158 of 2023).

6. At this stage, the Court found that Reshu Gupta is not a party in F.A.F.O. No. 158 of 2023 and thus the Court required the learned counsel for the appellant to implead Sri Reshu Gupta who was the appellant-vendor as a party in F.A.F.O. No. 158 of 2023 and he is permitted to carry out the necessary amendment in the memo of appeal of Appeal No. 158 of 2023. This has been necessitated on account of the fact that Reshu Gupta and Ram Shankar Gupta are already parties in F.A.F.O. No. 162 of 2023, accordingly, in order to avoid any future complications as well to correct the array of parties and to do substantial justice between the parties. The Court has permitted the learned counsel for the parties to do so during the course of the day.

7. As the Court has permitted the appellants to implead Sri Reshu as a party to the proceedings. The appellants shall also be at liberty of moving an application before the Lower Appellate Court to correct the array of parties in the memo of first appeal including by seeking an amendment in the plaint for impleading Sri Reshu Gupta. In case if any such application is moved, the same be considered appropriately in light of the fact that Sri Reshu Gupta has already been permitted to be impleaded in this appeal.

8. The facts would indicate that the originally the property belonged to Smt. Suhsila Gupta who had sold the same to Reshu Gupta who was a minor at the relevant time by means of sale deed dated 25.06.2001. Subsequently, Reshu Gupta sold the property to the present appellants- Sanjay Kumar Modi and Rashmi Modi by means of registered sale deed dated 06.01.2006. This sale deed of the year 2006 was also executed by the minor Reshu Gupta through his guardian and father Ram Shanker Gupta.

9. The record would further indicate that Smt. Sushila Gupta is said to have instituted a suit for cancellation of the sale deed dated 06.01.2006  against Reshu Gupta and Ram Shankar Gupta which was registered as Regular Suit No. 123 of 2005, however, during the pendency of the said suit, the said property came to be purchased by the present appellants who were not parties to the suit. During pendency of the suit, upon the death of Smt. Suhshila Gupta, one Sri Uday Raj had moved an application seeking his substitution in place of Smt. Sushila Gutpa on the basis of a will executed by Smt. Sushila in his favour. Later, upon consideration on merits, the aforesaid suit came to be decreed by means of judgment and decree dated 20.04.2014.

10. It is the case of the appellants herein that Sri Uday Raj informed the present appellants regarding the judgment and decree dated 20.04.2014 and thereafter the appellants herein instituted a suit bearing No. 134 of 2015 seeking cancellation of the judgment and decree dated 20.04.2014. The appellants instituted another suit seeking declaration of their rights bearing Regular Suit No. 163 of 2015. Since the two suits related to the same property in between the parties in question but they were not consolidated, though, they were tried simultaneously.

11. Both the suits filed by the appellants bearing R.S. No. 134 of 2015 and R.S. No. 163 of 2014 both were decreed by means of judgment and decree dated 09.05.2022. Being aggrieved against the judgment and decree dated 09.05.2022 passed in the two suits separately, Sri Uday Raj Preferred two separate Civil Appeals under Section 96 C.P.C. before the District Judge, Balrampur which was registered as Civil Appeal No. 10 of 2022 which emanated from Regular Suit No.  134 of 2022 whereas the other appeal which was registered as Civil Appeal No. 11 of 22 related to the judgment and decree passed in Regular Suit No. 163 of 2014.

12. Both the appeals have been decided by a common judgment dated 11.04.2023 which is under challenge in the two respective appeals before this Court.

13. Sri Sudeep Kumar, learned counsel for the appellant has primarily attacked the judgment on the point that once the Appellate Court had applied its mind to the controversy and had formulated the points for determination as indicated in the Order 41 Rule 31 C.P.C. and the entire evidence was already on record, then there was no occasion for the Appellate Court to have remanded the matter by means of the impugned judgment.

14. It is submitted that unless and until, there was any handicap faced by the Appellate Court which fell within the parameters of Order-41 Rule 23-A till then in absence of any such cogent reason, the order of remand is not justified. The learned Counsel for for the appellant has relied upon a decision of the Apex Court in Shivakumar and others Vs. Sharanabasappa and Others; (2021) 11 SCC 277.

16. Per contra, Sri B.K. Saxena, learned counsel for the respondents submits that in so far as the legal submissions regarding the power of remand is concerned, he submits that it is now well settled that an endevour should be made by the Appellate Court to consider and decide the matter on merits as far as possible where the parties have already led the entire evidence.

15. He also submits that the issue which was to be considered was duly covered in light of the evidence which was already available on record and to that extent, he does not support the impugned judgment. He very fairly submits that ends of justice can be met in case if the impugned orders are set aside, however, while requiring the Lower Appellate Court to decide the matter afresh, some time frame may be fixed so that the longstanding controversy can be put to an end.

16. He further submits that in light of the contentions which have been raised by the parties and as noticed by the Lower Appellate Court but only two points for determination have been framed, however, they do not encapsulate the entire controversy comprehensively. He submits that it should be open for the parties to raise their plea whichever is available and fresh points for determination may be framed by the Lower Appellate Court to which the learned counsel for the appellant also has no objection.

17. The Court has heard the learned counsel for the parties and also perused the material on record.

18. Before adverting to the respective submissions, it will be apposite to notice the scope of remand in terms of Order 41 Rule 23 and Order 41 Rule 23-A C.P.C. and for ready reference, the same is being reproduced hereinafter:-

"23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the 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, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

23.-A Remand in other Cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

19. The Apex Court in Shiv Kumar (supra) is in detail considered the scope of remand in paragraph nos. 26 to 26.6 of the said report after noticing the relevant provisions for remand contained in Order 41 Rule 23, Rule 23-A, Rule 24 and Rule 25 in paragraphs 26.3 to 26.6 held has under:-

"26.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23-A of Order 41 is not complete without reference to the provision contained in Rule 24 of Order 41 that enables the appellate court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the appellate court proceeds on a ground entirely different from that on which the trial court had proceeded.

26.4. A conjoint reading of Rules 23, 23-A and 24 of Order 41 brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an appellate court is to follow the mandate of Rule 24 of Order 41 CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a retrial is considered necessary that the appellate court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the trial court may not be considered proper in a given case because the first appellate court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.

26.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of the trial court are reversed and a retrial is considered necessary by the appellate court.

26.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the appellant-plaintiffs that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the will in question, some of which were noticed by the trial court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the trial court. The contention in this regard is required to be, and is, rejected."

20. This Court in Sanjay Kumar Vs.Amar Nath Shukla in F.A.F.O. No. 431 of 2003 decided on 14.01.2020 also had the occasion to consider the scope of remand wherein this Court had relied upon the decision of the Apex Court in Jegannathan vs. Raju Sigamani & Anr., reported in (2012) 5 SCC Page 540, and J. Balaji Singh vs. Diwaker Cole & Ors., reported in (2017) 14 SCC 207.

21. Having noticed the scope of remand and applying the aforesaid principles to the facts of the case, it would indicate that the Lower Appellate Court has not exercised the powers of remand in its correct perspective. The reasoning given by the Lower Appellate Court in paragraphs 9 to 11 of the impugned judgment does not reflect conscious application of judicial principles as required to be applied before a remand order is passed.

22. From the perusal of the impugned order, it only reveals that the Lower Appellate Court made reference to certain sections such as Sections 52 and 53 of the Transfer of Property Act and Section 101 and 102 of the Indian Evidence Act, however, what the Lower Appellate Court has failed to notice as to how the aforesaid sections would create any handicap for the Appellate Court to have decided the matter. In the instant case, this Court finds that the parties have led their entire evidence and there is no reference made by the Lower Appellate Court that any particular issue or on any particular aspect of the matter, the parties have not been able to lead evidence which was imperative which leads the Lower Appellate Court to remand the matter. This is to be kept in mind especially in context of the fact that the Court cannot permit the parties to fill the up the lacunae in their case by passing an order of remand.

23. It is also to be seen that the Lower Appellate Court has not given any reason whatsoever as to why the remand has been necessiated except that the provisions of Sections 52 and 53 of the Transfer of Property Act and Sections 102 and 103 of the Indian Evidence Act have not been considered. If only the effect of the aforesaid legal provisions were to be seen, then the Lower Appellate Court being the final court of fact and law was legally empowered and obliged to have considered the effect of the aforesaid sections on its own, without remanding the matter.

24. It is also to be noticed that the power of remand is not to be exercised casually or it cannot be a ground to merely shirk from the responsibility of deciding the matter on merits since the powers of the Lower Appellate Court under Section 96 C.P.C. is wide and akin to that of the Trial Court and in any case being the Court of first appeal, it is legally obliged to consider points of fact and law afresh and under the aforesaid circumstances, there was no justification for the Lower Appellate Court to have remanded the matter.

25. In view of the aforesaid, this Court finds that there is no appropriate reason nor any justifiable cause mentioned in the impugned order which can support the order of remand, accordingly, the impugned judgment and decree orders dated 11.04.2023 passed in the two appeals are liable to be set aside.

26. In view of the aforesaid, the two appeals bearing F.A.F.O. No. 158 of 2023 and F.A.F.O. No. 162 of 2023 shall stand allowed. The judgment and decree passed by the Lower Appellate Court dated 11.04.2023 passed in First Appeal No. 10 of 2022 and 11 of 2022 is set aside. The appeals shall stand restored on the Board of the District Judge, Balrampur. The parties shall appear before the District Judge, Balrampur on 10.07.2023. The Lower Appellate Court shall after affording full opportunity of hearing to the parties, including permitting them to raise all their contentions, shall decide the appeals afresh on merits preferrably within a period of three months from the date the parties appear before the Lower Appellate Court. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 29th May, 2023

Asheesh