Shri Vishnu Dasharath Chavan vs Shri Pundalik Dasharath Chavan
2017 Latest Caselaw 3911 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                            APPEAL FROM ORDER NO. 14 of 2016
                                        with
                             CIVIL APPLICATION NO. 20 OF 2016


      Shri Vishnu Dashrath Chavan                                   ..Appellant

                     v/s.

      Shri Pundalik Dashrath Chavan                                 ..Respondents

      Mr. S.M.Gorwadkar, Sr. Advocate a/w. Mr. Nirtanjan Mogre for the
      Appellant
      Mr. Sameer N. Tendulkar for the Respondent.

                                      CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED : 3rd JULY, 2017.

JUDGMENT.

1. Admit.

2. With the consent of the learned Counsel for the respective parties, the

appeal is taken up for final hearing at the stage of admission.

3. The appellant herein has challenged the judgment and order dated 3 rd

May, 2014, whereby the Adhoc District Judge-I, Vasai has set aside and

quashed the judgment and decree dt.28.2.2013 and remanded the suit with

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direction - "to allow the plaintiff and the defendant to establish their

respective claims so that the dispute should be resolved in proper legal

manner following the observations made in the judgment, but not swaying

away with it".

4. Heard Mr. Gorwadkar, the learned Counsel for the Petitioner and Mr.

Tendulkar, the learned Counsel for the respondent. I have perused the

impugned judgment, the pleadings and I have considered the submissions

advanced by the learned Counsel for the respective parties.

5. The appellant herein claims to be the owner of the suit flat no. 13,

Wing, in Gitanjali Co-operative Housing Society. It is the case of the

appellant that he had allowed his brother i.e. the respondent herein to

occupy the suit flat. The respondent refused to vacate the suit flat, and this

resulted in filing the suit for recovery of possession of the suit flat.

6. The respondent denied that the appellant herein was the sole owner of

the suit flat and that the appellant had permitted him to reside in the suit

flat. The defence of the respondent was that the suit flat was purchased

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from the retirement benefits of his father. He claimed that there was an

understanding/family arrangement that he would occupy the suit flat and

the appellant would occupy the flat at Borivali. Accordingly he is

occupying the suit flat and the appellant is occupying the flat at Borivali.

The respondent therefore claimed that the appellant was not entitled to

recover possession in respect of the suit flat.

7. The learned trial Judge, after appreciating the evidence adduced by

the respective parties decreed the suit and directed the respondent to hand

over vacant possession of the suit flat in favour of the appellant. The

respondent challenged the said order in Appeal No.21 of 2013. The

learned Adhoc District Judge, Vasai allowed the appeal, and quashed and

set aside the order of the trial Court, and remanded the suit with directions

as quoted above.

8. The short question which is falling for consideration is whether the

appellate court was justified in remanding the suit for re-trial and decision

afresh on merits.

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9. In order to decide the correctness or legality of the impugned

decision of remand, it is necessary to consider the scope of jurisdiction of

the Appellate Court in the matter of remand. In this regard it is relevant to

refer to the provisions of Rules 23, 23A and 25 of Order 41 of Civil

Procedure Code (for short CPC), which confer power of remand on the

Appellate Court. The said rules read thus:

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.

23A. 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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

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 fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court

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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 there for within such time as may be fixed by the Appellate Court or extended by it from time to time.

10. A plain reading of the aforesaid provisions make it abundantly clear

that the appellate court can invoke the powers under Rule 23 of Order 41

when the trial Court has disposed of the suit on a preliminary point and

when the Appellate Court reverses such decree and considers it fit to

remand the case for fresh disposal. Order 41 Rule 23A, which has been

inserted in the Code by Act No. 104 of 1976, empowers the Appellate Court

to remand the suit to the trial Court, when the suit is disposed of otherwise

than on a preliminary point and the decree is reversed in appeal and retrial

is considered necessary.

11. Order 41 Rule 25 of the Code empowers the Appellate Court to

frame issues and refer them for trial to the Court from whose decree the

appeal is preferred. The powers under Rule 25 can be invoked by the

Appellate Court when the Court that passed the decree has omitted to frame

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or try any issue, or to determine any question of fact, essential to decide the

suit upon the merits. While remitting the issues, the Appellate Court may

direct the trial Court to take additional evidence on such issues. When

issues are remitted in exercise of powers under Order 41 Rule 25 of the

Court, the Appellate Court continues to be in seisin of the matter. In such

case, the trial Court has to try the issues referred by the Appellate Court and

return the evidence to the Appellate Court together with its findings and

reasons thereon. The Appellate Court thereafter has to decide the appeal

on the additional evidence and additional findings recorded by the trial

court.

12. In the instant case, the trial Court had not disposed of the suit on a

preliminary issue, but had disposed of the same on merits. Hence, the

provisions of Order 41 Rule 23 were not attracted. Similarly, the Appellate

Court had not taken recourse to Order 41 Rule 25 of CPC, but had set aside

the judgment and decree passed by the trial Court and directed the trial

Court to decide the matter afresh by giving an opportunity to the respective

parties to establish their case. It is thus evident that the order passed by

the Appellate Court was in exercise of powers under Order 41 Rule 23A of

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the Code.

13. The question, which therefore falls for consideration, is about the

legality and propriety of the order of remand under Order 41 Rule 23A of

CPC. As stated earlier, recourse to this provision can be taken when the

decree is reversed in the appeal and the circumstances warrant retrial. In the

instant case, a perusal of the impugned judgment reveals that the Appellate

Court has ordered re-trial mainly on the ground that the evidence adduced

by the Appellant as well as the respondent was not sufficient to establish

their respective claims. As stated earlier, the appellant had sought recovery

of the suit flat alleging that the said flat was purchased by him from his own

income. He had claimed that the respondent was to get married and being

his brother, he had permitted the respondent to reside in the said flat

temporarily with a clear understanding that he would vacate the suit flat

after purchasing his own flat. Per contra, the respondent had claimed that

the suit flat was purchased from the retirement benefits of their father. The

respondent had claimed that in terms of the family arrangement between

them and their parents, he has been occupying the suit flat and that the

appellant has been occupying the flat at Borivali. Based on these pleadings,

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the learned Judge had framed the relevant issues. Both the parties had

adduced evidence, knowing fully well the case pleaded by them and the

issues involved in the suit. None of the parties had claimed before the

appellate court that they were unable to or precluded from adducing either

oral evidence or documentary evidence before the trial Court and had not

made any request to adduce any additional evidence before the Appellate

Court. It was also not a case of discovery of fresh evidence subsequent to

the decision of the trial court. Under such circumstances, the learned Judge

was not justified in remanding the case and directing re-trial, but was

required to decide the appeal based on the evidence adduced by the

respective parties. Even otherwise, if the appellate court was of the view

that additional evidence was indeed required for just decision of the appeal,

the appellate court was fully competent to take recourse to Rule 27, 28 and

29 of Order 41 CPC but was certainly not justified in quashing the

judgment and ordering retrial.

14. It is well settled that the Appellate Court should be circumspect in

ordering a remand as it is well known that unwarranted order of remand

results in a prolonged litigation and consequent manifest injustice to the

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litigants. In this regard, it would be advantageous to refer to the decision of

the Apex Court, in Municipal Corporation, Hyderabad vs. Sundersingh1,

wherein it is held that :

11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.

15. In the instant case, the facts and circumstances did not warrant retrial

and the exercise of jurisdiction under Order 41 R 23A of the Code was

totally erroneous. Consequently, the impugned judgment and decree cannot

be sustained.

16. In the result, the appeal is allowed. The impugned judgment dated

3rd May, 2014 is quashed and set aside. The learned Adhoc District Judge-I,

Vasai is directed to decide the Appeal No.21 of 2013 on merits after hearing

both the parties and without being influenced by the observations made in

the earlier judgment.

1 [2008] 8 SCC 485



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17. Both the parties to appear before the Adhoc District Judge-I, Vasai on

24th July, 2017.

12. In view of disposal of appeal, civil application does not survive and

the same is disposed of.

                                             (ANUJA PRABHUDESSAI, J.)




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