Deputy Regional Transport ... vs Yashwant Narayanarao Thakare
2003 Latest Caselaw 229 Bom

JUDGMENT

J.N. Patel, J.

1. Heard Mr. Loney, the learned A. G. P. for the Appellants and Mr. S.N. Bhattad, learned counsel for the respondent.

2. The Appellants are the Deputy Regional Transport Officer. Akola and State of Maharashtra, who were the original defendants and have preferred this appeal against the Judgment and Order dated 2nd May, 2001 passed by the District Judge, Akola in Regular Civil Appeal No. 431/2000, under which the lower Appellate Court quashed and set aside the Judgment & Decree dated 14-9-2000 passed in Regular Civil Suit No. 824/1997, between the parties and remanded the matter to the lower Court with a direction to readmit the suit in its original number in the register of Civil Suits and after giving the opportunities to both the sides on the application at Exh. 22, under Order'39, Rule 2-A of the Code of Civil Procedure, dispose of the same according to law and also decide the suit according to law.

3. The Plaintiff filed a suit against the defendants for declaration and permanent injunction. It is the case of the plaintiff that he applied for loan from the District Industrial Centre Akola, in order to purchase a Light Motor Vehicle known as Mini Door Three Wheeler for transport purpose. He was advanced a loan of Rs. 20,000/- with interest @ 8% p.a. A further loan was granted by State Bank, and on 28th October, 1997 the plaintiff had purchased and got delivery of the vehicle. On the next date i.e. on 29th October, 1997 the plaintiff went to R. T. O. Akola for registration of the vehicle, but the same was refused at the first instance as the plaintiff had approached the office of R.T.A. after the expiry of 180 days, from the purchase of the vehicle. The defendant i.e. the R. T. O. permitted the plaintiff to make a fresh application and, therefore on 29th October, 1997 the plaintiff preferred a fresh application which was also refused, particularly on the ground that the licence of the plaintiff for Light Motor Vehicle Transport and asked him that he should obtain licence to drive three wheeler transport and till he is granted the licence, the vehicle cannot be registered.

4. It is further the case of the plaintiff that because of the refusal on the part of the R. T. O. to register his vehicle for want of licence to drive three wheeler, he was required to keep the vehicle in open space, new S. T. Stand Vyala, where a truck gave dash to his stationary vehicle and it got damaged and the plaintiff suffered loss of Rs. 15,000/-. The plaintiff was required to pay instalment of Rs. 110/- per day and plaintiff could have earned Rs. 200/- from the Mini Door Vehicle. According to the plaintiff the vehicle comes under Light Motor Vehicle and therefore the R. T. O. should have registered the vehicle and should have saved the plaintiff from sustaining loss, and it is on the basis of this fact, relief of permanent injunction restraining the defendant from not registering the vehicle and declaration to register the vehicle as transport vehicle was sought. It is submitted that the act of the defendant in not registering the transport vehicle has caused injustice to him. After filing of the suit, the plaintiff also filed an application for temporary injunction which came to be rejected by the Trial Court. The matter was carried in Appeal. The Appellate Court by its order quashed and set aside the order dated 28-11-1997 packed by the Trial Court, and directed the defend ant No. 1 to issue provisional registration to the plaintiff. On plaintiff obtaining licence of three wheeler and made it clear that the provisional registration is subject to the final decision of the suit. The matter was carried in Revision against the interim order of the District Judge, dated 13-2-1998. The civil revision filed by the defendant came to be dismissed.

5. It appears that in spite of having orders in its favour, the defendant failed to grant provisional registration in favour of the plaintiff and therefore, the plaintiff filed an application under Order 39, Rule 2-A of C. P. C. for taking appropriate action against the defendant for breach of the injunction, vide Exh. 22. The parties to the suit filed a joint pursis on 8-9-1998 Exh. 27, under which they agreed that the question of breach of injunction be decided along with the suit. The Trial Court by its judgment and order dated 14th September, 2000 dismissed the suit of the plaintiff, but did not give any decision on the application filed by the plaintiff for taking action against the defendants for having committed breach of the injunction order i.e., application under Order 39, Rule 2-A of C. P. C. The plaintiff aggrieved by the said decision of the Trial Court, preferred an appeal before the District Judge, who by its order dated 2nd May, 2001 remanded the matter to the lower Court under the impugned order.

6. Mr. Loney, the learned A. G. P. appearing for the Appellants submits that the impunged order passed by the Appellate Court was not proper as the Appellate Court failed to exercise jurisdiction vested in it. It is submitted that the Appellate Court without arriving at a finding that the Trial Court has committed any error on facts and question of law, set aside the judgment and order of the Trial Court dismissing the suit, and merely on the ground that the Trial Court failed to consider and decide the application under Order 39, Rule 2-A passed the impunged judgment and order. It is submitted that the First Appellate Court committed an error as it's decision to remand the matter for fresh Trial in accordance with law on the said ground was not proper and deserves to be quashed and set aside.

7. Mr. Bhattad, the learned Counsel appearing for the Respondent, submits that the First Appellate Court was justified in remanding the matter for fresh Trial as the Trial Court has over looked the application made by the plaintiff for taking action against for having committed breach, of the injunction order, and did not pronounce any decision on the application under Order 39, Rule 2-A of C. P. C. Therefore, in the facts and circumstances, no interference is called for and the appeal be dismissed.

8. It appears that the learned District, Judge, has not approached the matter in its proper perspective. The learned District Judge has quashed and set aside the Judgment and order dated 14-9-2000 of the lower Court on the premise that it failed to take a decision on the application under Order 39, Rule 2-A of C. P. C. The reason given for remanding the matter by the Appellate Court is that after passing the decree in the suit, the Trial Court has become functus officio. In these circumstances, it is necessary in the interest of justice, to set aside the impugned judgment and decree in this appeal and remand the matter so that the application at Exh. 22 can be disposed of according to Law.

9. The whole approach appears to be erroneous for the reason that the Appellate Court cannot make the order of remand without coming to a conclusion that the decision of the Trial Court is wrong, and that it is necessary to reverse or set aside the decree. It has to consider the evidence on record and then arrive at a conclusion whether the finding recorded by the Trial Court cannot be supported with the evidence on record. There can be no justification in setting aside the judgment and decree on the ground that the Trial Court did not deal with the matter pending before it. In the present case, it being an application under Order 39, Rule 2-A of C. P. C., it was open to the Appellate Court to have considered the appeal on merits and even take up the application under Order 39, Rule 2-A of C. P. C. for decision, or it could have been in the fitness of things to merely call upon the Trial Court to decide the application under Order 39, Rule 2-A of C. P. C. by keeping the appeal pending and then take a decision on merits of the matter. In spite of choosing the better alternative, the Appellate Court proceeded to quash and set aside the judgment and order given on merits without examining the pros and cons of the matter and giving decision on merits. It is a settled law that the Appellate Court should exercise its powers of remand with caution, since the public policy is that a litigation should be concluded finally as far as possible. Therefore, the impunged judgment and order of the First Appellate Court is quashed and set aside, particularly the order of the Appellate court quashing and setting aside the judgment and decree dated 14-9-2000 passed by the lower Court, is quashed and set aside, so also the remand of the case to the lower Court with a direction to readmit the suit in its original number in the register of Civil Suits and to decide the suit according to law, instead the order of the Appellate Court remanding the application under order 39 Rule 2-A of C. P. C. for the reasons given in its judgment or in paras No. 6 and 7 upheld or is modified to the extent that the Trial Court would decide the application under order 39 Rule 2-A of C.P.C. within a period of three months from the date of communication of this order, and on such decision the Appellate Court would hear the parties in the matter of appeal on merits and dispose it of in accordance with law.

10. The appeal is allowed in the aforesaid terms with no orders as to costs. Certified copy expedited.