Balbhim vs 2] Bhanudas
2010 Latest Caselaw 96 Bom

                                         1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                     
                     APPEAL FROM ORDER NO. 65 OF 2003



     Balbhim S/o Sakharam Magar,




                                                    
     Age 54 years, Occu. Agri.,
     R/o Village Magarwadi,
     Tq. Ambajogai, Dist. Beed.                                       ...Appellant

                        Versus




                                      
     1]    Sonbaba S/o Sidharam Mane,
                       
           Age 73 years, Occu. Agri.,
           R/o Village Magarwadi,
           Tq. Ambajogai, Dist. Beed.
                      
     2]    Bhanudas S/o Ganpatrao Khandade,
           Age 68 years, Occu. Legal Practitioner,
           (Advocate), r/o Village Renapur,
      

           Tq. Renapur, Dist. Latur
           at present residing at Latur
           C/o District Court, Latur.                          ...Respondents
   



                                         .....
     Mr. Ujwal Patil, Advocate h/f R.S. Deshmukh, advocate for the appellant





     Mrs. M.A. Kulkarni, , Advocate for respondent No. 1
                                         .....

                                               CORAM : S. S. SHINDE, J.

                                               DATE       : 26.10.2010





     JUDGMENT :-


     1     This Appeal From Order takes exception to the Judgment and

Order dated 10th of July, 2003 in Regular Civil Appeal No. 25 of 1993.

Brief facts of the case are as under :-

2 The original plaintiff is owner and possessor of land Survey No.

206, admeasuring 1 Hector situated at Ambajogai, (here-in-after

referred as "suit land"). It is the case of the plaintiff that the plaintiff was

in need of money for domestic expenses. Therefore, in the year 1976

he demanded Rs. 4,000/- with defendant No. 1. The defendant

showed his readiness to pay the said amount subject to condition that

if the plaintiff is ready the sale-deed of the suit land for the security of

the said loan. It was decided that the defendant No. 1 will cultivate the

land of the plaintiff, he had to get 3/4th share towards the interest of the

amount of Rs. 4,000/- and had to give 1/4th share to the plaintiff. It was

agreed that the plaintiff should execute the sale-deed in favour of

defendant by way of security to the said amount and when the plaintiff

replays the said amount, defendant will executed the re-conveyance

deed and to have a faith to both of them. The sale-deed was agreed

to be executed in favour of 3rd party i.e. defendant No. 2. Accordingly,

the plaintiff by way of the security of money given by defendant No. 1

executed the sale-deed in favour of defendant No. 2 on 7th April, 1976

as agreed. Thereafter, the plaintiff came to know that against the

agreed terms defendant No. 2 is executed the said sale-deed in favour

of defendant No. 1 on 17th March, 1978. This fact came to the

knowledge of plaintiff when defendant No. 1 refused to give his 1/4th

share in the income of the said land. Sale-deed in between both the

defendants is bogus and illegal, not binding on the plaintiff. It is further

contention of the plaintiff that the Defendant No. 1 is enjoying suit

land illegally and against the agreement since one year prior from

filing of the suit. Thus, the plaintiff is entitled to get executed

reconveyance deed from defendant No. 1 and also entitled to claim

possession. However, defendant No. 1 avoided to refused to execute

the reconveyance deed, and therefore, plaintiff issued notice to the

defendant No. 1 on 6th October, 1984. In spite of notice, the defendant

No. 1 denied the transaction. The defendant No. 2 did not reply to the

said notice. The cause of action arose on 15th November, 1984 to file

the suit. The plaintiff / appellant filed the suit for reconveyance deed

of the sale, which was executed by way of security at serial No. 659

dated 7th April, 1976 in favour of defendant No. 2 about the suit land by

accepting Rs. 4,000/- by the defendant No. 1 and also for obtaining

possession of the suit land from him. It is also prayed that the sale-

deed executed in between both the defendants dated 17th March,

1978 be declared as not binding upon the plaintiff.

3. The defendant No.2 was duly served remained absent. Hence

suit proceeded ex-parte against him, as per order of the Trial Court

dated 14th February, 1985. The defendant No. 1 i.e. appellant herein

appeared and strongly resisted the suit claim by filing Written

Statement at Exh. 13.

4 The Trial Court after recording the evidence and hearing of rival

submissions framed as many as twelve issues for

consideration/determination. After appreciating the evidence on record

and hearing the parties the Trial Court i.e. Jt. Civil Judge Senior

Division, Ambajogai, dismissed the suit.

5 Being aggrieved by the Judgment and Order dated 20th

February, 1993 in Regular Civil Suit No. 7 of 1985. The respondent

No. 1 herein who is original plaintiff filed Regular Civil Appeal No. 25 of

1993 before the Ist Adhoc Additional District Judge, Ambajogai, Dist.

     Beed.    The
                       
                     Appellate   Court   frame    only    two     points      for    its

consideration/determination and by his Judgment and order dated 10th

July, 2003 reversed the Judgment and Decree passed by the Trial

Court and suit was remanded for retrial. The Appellate Court observed

that the suit should be retried by giving opportunity of both the sides to

adduce their respective evidence and decide it on merits. The said

Judgment and Order of the Ist Adhoc Additional District Judge,

Ambajogai, Dist. Beed is under challenge in this Appeal From Order.

6 This Court admitted this Appeal From Order and further

proceedings in the lower Court were stayed, as a result though the suit

was remanded for re-hearing the same proceedings remain stayed.

7 The learned Counsel appearing for the appellant submitted that

the Appellate Court failed in its duties to adjudicate and address of all

points felt for its consideration and remanded the suit for re-trial

without discussing the merits and de-merits of the matter. According to

the counsel for the appellant such order is impermissible. The learned

Counsel further submitted that the Trial Court framed as many as 12

issues for its determination and by well reasoned Judgment and Order

dismissed the suit. However, the Appellate Court without entering into

the merits of the matter only framed two points for its determination

and remanded the suit for re-trial to the Trial Court. According to the

Counsel for the appellant such remand order is impermissible in law. It

is further submitted that while remanding the matter back to the Trial

Court, the Appellate Court has not taken into consideration the various

issues including Whether the suit which was filed by the respondent

No. 1 herein was within limitation or not? The learned Counsel further

submitted that the peculiar facts and circumstances of the case did not

warrant remand of suit for retrial. The Trial Court after giving fair

opportunity to both the sides decided the suit. The Appellate Court

should have decided the matter in one way or other without remanding

the matter to the Trial Court. It is further submitted that the Appellate

Court ought to have exercise the powers which are available to it and

decided the matter at the Appellate stage itself. Learned Counsel

further submitted that the remand order was absolutely unwarranted.

Therefore, learned Counsel relying on Supreme Court Judgments

would submit that the order of remand should not be routine affair but

it should be exception. Therefore, this Appeal From Order deserves to

be allowed.

8 On the other hand, learned Counsel appearing for the

respondent submitted that the Appellate Court held that the proper

opportunity was not given to both the parties and in the interest of

justice and in order to give fair opportunity to both the parties to led the

evidence, Appellate Court remanded the suit for re-trial, and therefore,

the Judgment and Order passed by the Appellate Court needs no

interference.

9 I have heard learned Counsel appearing for the respective

parties, at great length, perused the Appeal From Order and original

papers made available for the perusal.

At the outset, it is necessary to take into consideration the

provisions, under which this Appeal From Order is filed in this Court

and to what extent this Court can interfere in the impugned judgment

and order passed by the lower appellate 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 under the provisions of Section 104 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 suppose 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.

The learned appellate Court framed only two points i.e. Whether

there are sufficient grounds to reverse the impugned Judgment and

decree in this appeal and retrial is necessary?, and What order?. The

point No. 1 is answered in the affirmative. I have carefully perused the

reasons recorded by the lower Appellate Court. In para No. 15, the

lower Appellate court opined thus :-

" Any way from the above facts and

circumstances, it has to be stated that no full and fair opportunity is given to both the sides to adduce their evidence. It is principle of natural justice that both sides have to be heard and full and fair

opportunity is to be given to both sides. By keeping in this view, it is just and proper to reverse the impugned Judgment and decree in this appeal and retrial is necessary."

Again in said paragraph the Trial Court held thus :-

" I would like to mention that as no full and fair

opportunity has given to either side I am not touching to the merit and demerit of this Suit."

10. Therefore, it is apparent that, the lower Appellate Court without

touching to the merits of the matter and without going into the merits of

other points, passed the impugned Judgment and Order, thereby

remanding the suit before the Trial Court for re-trial.

The Trial Court framed as many twelve issues for its

consideration / determination. In said issues one of the important issue

was whether the suit barred by law of limitation? In my opinion, the

Judgment and Order of the Appellate Court is not sustainable in law.

The following Substantial questions of law falls for the consideration of

this Court in the present Appeal.

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?

v) Whether the Appellate Court has not considered the

section 3 and Article 58 of the Limitation Act which

prescribes the limitation for three years for the relief of

declaration. In this case, the first sale-deed is in the year

1976 executed in favour of plaintiff. Defendant No. 2 and

another sale-deed was executed in the year 1978

executed by defendant No. 2 defendant No. 1. In the light

of this Whether the suit was barred by the law of

limitation?

vi) Whether the Appellate Court was duty bound to see

whether the suit of the plaintiff is within limitation?

11. In the present case as stated here-in-above, the Appellate court

has not considered the law of limitation for filing the suit or any other

point which are considered by the Trial Court extensively. That apart,

the Appellate Court itself has observed that, without going into the

merits and demerits of the matter the suit is remanded for the Trial

Court for retrial. Therefore, such order passed by the Appellate Court

is not sustainable in law. The lower Appellate Court is duty bound to

adjudicate the issues which falls for consideration and more

particularly, when the Appellate Court wants to remand the suit for

retrial to the Trial Court. Sub Section 2 of Section 107 of the Civil

Procedure Code read thus :-

"(2) Subject as aforesaid, the appellate Court

shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."

In my opinion, the lower Appellate Court itself would have

considered the legal aspects involved in the matter. 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.

12. In the light of above discussion made in foregoing paras, the

Impugned Judgment and Order passed by the Ist Adhoc Additional

District Judge, at Ambajogai, District Beed is quashed and set aside.

The Regular Civil Suit 7 of 1985 is restored to its original position.

13 In the light of the discussions made in the foregoing

paragraphs, the impugned judgment and order dated 10th July, 2003

passed by the Ist Adhoc Additional District Judge, Ambajogai in

Regular Civil Appeal No. 25 of 1993 is quashed and set aside. The

Regular Civil Appeal No. 25 of 1993 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.

14 Civil application, if any, stands disposed of.

15 Record and proceeding of this case be sent back forthwith to the

concerned Court.

(S.S. Shinde, J.)

SDM* 65.03AO/301010