Bombay High Court
Zolba S/O Sambaji Ledange And ... vs Rama S/O Durga Ailwar And Others on 22 August, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Appeal against Order No. 35 of 2017
Appellants : 1) Zolba s/o Sambaji Ledange, aged about
70 years, Occ: Agriculturist,
2) Zitru s/o Maroti Ledange, aged about 90
years, Occ: Agriculturist
Both residents of Sakharwahi, Tahsil Rajura,
District Chandrapur
versus
Respondents : 1) Rama s/o Durga Ailwar, aged about 80
years, Occ: Agriculturist
2) Durga s/o Mondi Ailwar, aged about 64
years, Occ: Agriculturist
3) Namdeo s/o Mondi Ailwar, aged about
57 years, Occ: Agriculturist
4) Bapuji s/o Mondi Ailwar, aged about 51
years, Occ: Agriculturist
5) Chandu s/o Mondi Ailwar, aged about
49 years, Occ: Agriculturist
All residents of Sakharwahi, Tahsil
Rajura, District Chandrapur
Shri S. O. Ahmad, Advocate for appellant
Shri Nitin Bhisikar, Advocate for respondents
Coram : S. B. Shukre, J
Dated : 22nd August 2017
Oral Judgment
1. Heard. Admit. Heard finally by consent.
2. On hearing the submissions of Shri Ahmad, learned counsel
for appellants/original defendants and Shri Bhisikar, learned counsel for
the respondents/plaintiffs and on going through the paper book of this
appeal, the only question that arises for my determination is -
Whether in the facts and circumstances of the case, the appellate
court below could have exercised its discretion to remand the matter by
resorting to the power under Order 41, Rule 23A of the Code of Civil
Procedure ?
3. On going through the impugned judgment dated 20 th
December 2016, I find that there is great substance in the argument of
learned counsel for the appellant that the power of remand in this case
could not be exercised by the appellate court below. The only reason
given for remand of the matter to the trial Court in the impugned
judgment is that Issue No. 2 regarding obstruction of possession has been
adjudicated upon by giving short reasons and without discussing the
evidence brought on record by the parties. If the trial Court has failed in
its duty to discuss the evidence at length and give more convincing
reasons, nothing in law would prevent the immediate appellate court to
perform such a duty initially cast upon the trial Court. Rather, the 1 st
appellate court which decides an appeal which is presented on facts and
law, is obliged under law to re-appreciate the evidence and record its
findings on such re-appreciation of evidence by applying the relevant
provisions of law. This is also the mandate of Rule 24 of Order 41 CPC
which lays down that if the evidence adduced by the parties is sufficient
to pronounce the judgment, the 1st appellate court shall pronounce the
judgment. After all, the power of remand conferred upon the appellate
court under Rule 23A of Order 41 CPC cannot be understood as
independent and stand-alone power for remanding just any case as
thoght fit in its subjective assessment by the 1 st appellate court to the trial
Court. The purpose of remand is not to lighten the burden of 1 st appellate
court to re-appreciate the evidence, but to assist the 1 st appellate court in
performing its duty, which it cannot otherwise perform by looking into
facts on record. Ultimately, the remand of a case for re-trial entails not
only costs, but also spending of lot of time by the parties and the trial
Court and, therefore, the remand power has to be exercised by taking into
consideration all the relevant provisions of law and also the possibility
that the judgment cannot be pronounced by the appellate court on the
basis of facts available on record.
4. In the instant case, the facts available on record and which
are also reflected in the order of remand by the 1 st appellate court, were
indeed sufficient for the 1st appellate court to pronounce the judgment.
The 1st appellate court has no where stated that the facts were not
sufficient for it to take any view in the matter. It seems that the reasons
were short and the evidence was not discussed by the trial Court was the
major cause behind remand. Of course, it is also seen in the impugned
judgment that permission to lead additional evidence has been granted.
But, this additional evidence is only in respect of an admitted fact of filing
of appeal against order dated 30 th November 2015 passed by the
Tahsildar declaring the respondents to be the "protected tenants" of the
original landlord. It is submitted by learned counsel for the appellant that
there is also an order passed by the Sub-Divisional Officer, Rajura, before
whom the appeal is pending, on 13th January 2016 staying the order
dated 30th November 2015 passed by the Tahsildar. I think that passing
of such stay order by the Sub-Divisional Officer being a matter of record,
can always be taken judicial notice of by the 1 st appellate court. . In such
circumstances, the question would arise as to whether or not the order of
Tahsildar dated 30th November 2015 could be considered at all by the trial
Court in adjudicating upon the rights of the parties and this question, I
do not think, can perhaps be decided by letting the parties to lead
additional evidence. This question can be decided on the basis of facts
which are part of the record of the appeal proceedings before the Sub-
Divisional Officer, Rajura and which are appropriately brought on record
of the first appeal. So, even on this count, I am of the opinion that
remand of the matter to the trial Court was not warranted.
5. Appeal is allowed. The impugned judgment and order are
hereby quashed and set aside. The matter is remanded back to the 1 st
appellate court for deciding the appeal on its own merits. All questions
are kept open. Parties to bear their own costs.
S. B. SHUKRE, J
joshi
