Sayed Akbar vs Dhondiba
2010 Latest Caselaw 138 Bom

                             1




                                                            
                                    
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

            APPELLATE SIDE, BENCH AT AURANGABAD

              APPEAL FROM ORDER NO.73 OF 2007




                                   
     Sayed Akbar s/o Sayed Noor,
     age 66 years, occu. Agriculturist,
     r/o Dargah Sayeed Chand,
     Udgir,




                        
     Tq. Udgir, Dist. Latur.            ... APPELLANT.
              ig                     ( Ori. Plaintiff)

                   Versus

     1. Dhondiba s/o Namdeo Bhosale,
            
     age 72 years, occu. Agril.,
     r/o Nai Aabadi Udgir,
     Dist. Latur.

     2. Sayeed Habib s/o Sayeed Noor,
      


     age 59 years, occu. Agri.,
     r/o Dargah Sayeed Chand Udgir,
   



     Taluka Udgir, Dist.Latur.          ...RESPONDENTS
                                    (Orig. defendants)





                            ...
     Mr.Vinesh Solshe, Advocate holding for
     Shri Vivek Solshe, Advocate for appellant.
     Shri D.S. Kudale, Advocate holding for
     Shri P.G. Rodge, Advocate for Respondent No.1.
     R.No.2 served.





                            ...


                                 CORAM: S.S. SHINDE, J.

29th October, 2010.

ORAL JUDGMENT:

1 This appeal from order is filed

challenging the judgment and order dated 5th

April, 2007 passed by the Ad hoc District

Judge-1, at Udgir in R.C.A. NO.27 of 2002.

2 The igappellants herein filed suit for

perpetual injunction with declaration of

ownership. The said suit was decreed by the

trial Court. The trial Court, framed as many

as nine issues for its determination and after

appreciating the evidence brought on record

and after considering the rival submissions,

decreed the suit of the appellant herein. The

trial Court has considered the matter on

various aspects i.e. exclusive ownership of

the suit property, exclusive possession,

whether the plaintiff proves that the

defendants are obstructing the possession of

the plaintiff, whether the suit property was

valued for court fees and jurisdiction and

there were other issues also. However, the

appellate Court, without going into any other

aspects, framed only one point for its

consideration i.e. `whether this is a fit case

to remand to the trial Court for inquiry about

the valuation of the suit land?' The said

issue was answered in affirmative.

     3     The
                 
                  learned      Counsel       for       the      appellant

submits that the issue which was framed by the

appellate Court ought to have been gone into

by the appellate Court and the appellate Court

was competent to decide and adjudicate the

said issue and it was absolutely unwanted to

remand the matter back to the trial Court.

The learned Counsel further submitted that

since the trial Court has taken into

consideration all the points and thereafter

the suit was decreed, the appellate Court,

without framing any other points for its

determination, has remanded the matter back to

the trial Court. The learned Counsel further

submitted that if the appellate Court came to

the conclusion that the suit was not properly

valued, the appellate Court was empowered to

set aside the judgment of the trial Court.

However, it was not proper for the appellate

Court to remand the matter back to the trial

Court. He placed reliance on the judgment of

the Supreme Court in the case of P.

Purushottam Reddy and another vs. M/s Pratap

Steels Ltd., reported in AIR 2002 SC 771 and

more particularly, Head Note (B) of the said

judgment and submitted that this appeal from

order deserves to be allowed.

It is further argued that the impugned

judgment and order is in contravention of the

provisions of Order 41 Rule 23, 23A, 25 and 33

of C.P.C. In support of his contention,

counsel invited my attention to the report

judgments of the Supreme Court in the cases of

State of T.N. Vs. S. Kumaraswamin and others,

reported in AIR 1977 SC 2026, Ashwinkumar K.

Patel Vs Upendra J. Patel and Ors. reported in

AIR 1999 SC 1125, P. Purushottam Reddy and

Anr. Vs. M/s. Pratap Steels Ltd. reported in

AIR 2002 SC 771, Municipal Corporation,

Hyderabad Vs. Sunder Singh, reported in 2008

(8) SCC 485, Godrej Rustom Karmani Vs. Hari

Alidas Thadani and Ors. reported in 1990 (3)

Bom. C.R. 587.

Relying on the aforesaid judgments,

counsel for the appellant would submit that

the this Appeal From Order deserves to be

allowed.

4 On the other hand, learned counsel

appearing for the concerned respondents

submitted that it is not necessary for the

lower appellate court to formulate the points

while remanding the matter back to the trial

court. According to him, one issue has been

framed by the appellate court and based on it,

the matter was remanded back. He further

submitted that there are various

pronouncements of this Court, which have taken

view that it is not necessary for the lower

appellate court to formulate the points.

Learned counsel further submitted that the

appellants herein have no concerned with the

suit land and therefore, this Appeal From

Order deserves to be dismissed. Counsel in

support of his submissions heavily relied upon

the reasons recorded by the lower appellate

court while remanding the matter back to the

trial court for fresh consideration.

The learned Counsel for the respondents

invited my attention to the reasons recorded

by the appellate Court and submitted that

since the order passed by the trial Court is

without jurisdiction and the appellate Court,

after adjudicating the matter, found that the

matter is required to be remanded back to the

trial Court for inquiry about the valuation of

the suit land. Therefore, there is no any

infirmity in the judgment and order of the

appellate Court. He therefore, prayed that

this appeal from order should be dismissed.

5 I have given due consideration to the

rival submissions of the learned Counsel for

the parties, perused the judgment and order of

the appellate Court as well as the trial

Court.

Upon perusal of the same, it clearly

appears that the trial Court, after taking

into consideration all the points involved in

the matter, has passed decree. The appellate

Court, without referring to any other point,

only considered the point of valuation of the

land and remanded the matter back to the trial

court. Under sub-section ((2) of section 102

of the Code of Civil Procedure, the appellate

Court has same powers and duties like original

court. It was possible for the appellate

Court to adjudicate the issues involved and

decide the matter one way or the other at the

appellate stage itself instead of remanding

the matter back to the trial Court. The

Supreme Court has, time and again reminded

that the remand order should be exceptional

and not as a rule. The remand order causes

inconvenience to the parties and it delays

proceedings and therefore, remand order should

not be made casually. As it appears, the

judgment and decree of the trial Court has

been set aside in its entirety. Therefore, in

my opinion, the judgment and order passed by

the appellate Court deserves to be set aside.

6 In ordinary course, this Court would have

disposed of the matter here itself. However,

in view of the judgment of the Apex Court in

the case of Narayanan Vs. Kumaran and others,

reported in (2004) 4 SCC 26, the Hon'ble

Supreme court has considered the provisions of

Order 43 Rule 1(u) i.e. appeal from order

under the provisions of section 104 of C.P.C.

Order 43 Rule 1(u) reads thus:-

"43. (1) Appeals from Orders. - An

appeal shall lie from the following orders

namely-

(a) to (t) * * *

(u) an order under Rule 23 or Rue

23-A of Order 41 remanding a case, where

an appeal would lie from the decree of the

appellate court."

In para 17 of the said judgment it is held

thus:-

"17. It is obvious from the above

rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of

making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a

decree and not a mere order. In these

circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause

(u) should be heard only on the ground enumerated in Section 100. We therefore, accept the contention of Mr.

T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate

questions of facts. We, therefore, hold

that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such

facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts

arrived at by the lower appellate Court."

Therefore, in the present case, this

Appeal from order is required to be heard on

the only grounds enumerated in Section 100 of

C.P.C. In short, unless there is substantial

questions of law falls for consideration of

this court, this court is not supposed to

entertain this appeal from order. This Court

has to confine itself such facts, conclusions

and decisions which have bearing on the order

of remand and cannot canvass all the findings

of the facts arrived at by the lower appellate

court.

7 In the light of the above, the following

substantial questions of law would fall for

consideration of this court:

i)

Whether the lower appellate court while setting aside the judgment and decree of the trial court and remanding

the matter back to the trial court, has followed the scope of Order 41 Rule 23, 23-A and 25 of the C.P.C. in the light of various pronouncements of the Hon'ble

Supreme court taking a view that remand order cannot be passed as a routine

affairs but only in exceptional cases?

ii) Whether the lower appellate court failed to follow the command of Order 41

Rule 23 and 23A that the remand should not be made as routine and the appellate court itself should decide the appeal one way or the other?

iii) Whether the lower appellate court has

failed in its duties to formulate the points, adjudicate the issues, consider the rival submissions and take decision one way or the other by itself without remanding the matter to trial court as provided under sub-Sec. 2 of Section 107 of the C.P.C.?

iv) Whether the lower appellate court has

set aside the well reasoned judgment and decree of the trial court without

formulating the points and addressing all issues which felt for consideration

of the trial Court?

At this juncture, it would be appropriate

to refer the provisions of Order 41 Rule 23,

23-A and 25 of C.P.C., which reads thus:-

ig ORDER XLI APPEALS FROM ORIGINAL DECREES

"1 to 22 * * *

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 all just exceptions, be

evidence during the trial after remand.

23A Remand in other cases- Whether 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
            ig  is        considered

Appellate Court shall have the same powers necessary, the

as it has under rule 23.

      24   *    *     *
      


      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 facts, 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]

7 If the impugned judgment is perused it

clearly emerges that the lower appellate court

has set aside the judgment and order of the

trial court in its entirety and not only on

the preliminary points. The lower appellate

court has remanded the matter back to the

trial court after setting aside the judgment

and decree of the trial court. Therefore, the

case in hand would fall under Section 23A of

order 41 of C.P.C. However, Rule 23A provides

same powers to the appellate court as it has

under Rule 23.

8 When the appeal is filed challenging the

judgment and decree of the trial court, then

it is the duty of the appellate court to take

into consideration the entire important

points, evidence and documents into account

and then pass the necessary order in the light

of the provisions of Section 107 of C.P.C..

The appellate court itself is competent to

formulate the points, to address the legal

issue involved in the matter and also

appreciate ig the evidentiary value of the

documents, the remand of the matter to the

trial Court was not warranted. The remand

order causes delay in the proceeding and also

causes prejudice to the parties, as held by

the Hon'ble Supreme Court. From entire

discussion in para 6 to 10 and more

particularly the conclusions reached in para

10 of the lower appellate court, are too

cryptic to set aside the entire judgment and

decree of the trial court. It appears that the

lower appellate court has considered the only

effect of Section 14 of the Partnership Act

and contents of the Partnership deed and the

written statement filed by the defendants and

set aside the well reasoned judgment and

decree passed by the trial court. That

apart, the trial court has given liberty to

the parties to adduce any more evidence, if

they want. If the lower appellate court was

convinced that only one issue is required to

be framed and addressed by the trial court in

that case granting liberty to the parties to

adduce any more evidence if they want, is

totally unwarranted.

9 The lower appellate court itself could

have considered these legal aspects. It was

not that the lower appellate court was not

empowered to adjudicate these legal points.

It was not necessary to remand the matter

back to the trial court on the legal aspects.

Since the appeal is a continuous proceeding of

the suit, it was open for the lower appellate

court to exercise its jurisdiction and address

the legal issues and all other issues felt for

its consideration by framing necessary points

and then decide the matter by one way or the

other. The lower appellate court can do so

under sub section (2) of Section 107 of C.P.C.

However, the lower appellate court has failed

in its duties to exercise its jurisdiction

vested in it and rather chosen easier way to

remand the matter back to the trial court.

10 While discussing the substantial questions

of law 1, 2 and 3 it is already observed that

the lower appellate court has not addressed

the legal issues like whether the suit is

filed within limitation, the issue of

ownership and whether the plaintiffs are in

lawful possession of the property, all these

contentions are elaborately dealt with by the

trial court.

11 In the above background it would be

relevant at this juncture to refer to some of

the important judgment of the Hon'ble Supreme

Court on interpretation of Order 41 Rule 23,

23A and 25 of C.P.C. In the case of State of

T.N. (supra) the Hon'ble Supreme court held

that it is not permissible for the appellate

court to brush aside the findings of trial

court without giving any reason, without any

appreciation of documents and without any

appreciation of contentions of parties.

12 In the light of the discussions made in

the foregoing paragraphs, the impugned

judgment and order dated judgment and order

dated 5th April, 2007 passed by the Ad hoc

District Judge-1, at Udgir in R.C.A. NO.27 of

2002. The Regular Civil Appeal No. 27 of 2002

is restored to its original file. The lower

appellate court is directed to formulate the

necessary points for its determination /

consideration and adjudicate all those points

and decide the same by giving full opportunity

to the parties concerned. The lower appellate

court is directed to take into consideration

the necessary evidence, documents and legal

provisions. The parties are at liberty to

agitate relevant issues involved in the matter

and the lower appellate court can decide the

matter itself. With these observations, this

Appeal From order is allowed to the above

extent and disposed of.

Civil application, if any, stands disposed

of.

Record and proceeding of this case be

sent back forthwith to the concerned Court.

[ S.S. SHINDE ]

JUDGE.

...

kadam/*

APPEAL FROM ORDER 73 OF 2007

29th OCTOBER, 2010.

For approval and signature.

THE HONOURABLE SHRI JUSTICE S.S. SHINDE.

1. Whether Reporters of Local Papers }

may be allowed to see the judgment? } Yes.

2.

3.

To be referred to the Reporter or not?

Whether Their Lordships wish to see } Yes

the fair copy of the judgment? } No.

4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No.

5. Whether it is to be circulated to the }

Civil Judges? } No.

6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No.

[Prakash Kadam] Private Secretary to the Honourable Judge.