Bombay High Court
Taher Ahmed Salim Ahmed vs Mrs. Sandhya Girish Badge Through ... on 29 January, 2018
Bench: M.S. Sonak
(1) 5-AO 20 of 2017 & anr.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5 APPEAL FROM ORDER NO. 20 OF 2017
WITH CA/3003/2017 IN AO/20/2017
Taher Ahmed s/o Salim Ahmed
Age: 53 years, Occu.: Business,
R/o.C/o.Sayed (Shaikh) Ali Khan
Plot No.22, Maulana Azad Co-operative
Housing Society, Sector-A, N-13, CIDCO,
Aurangabad. ..Appellant
VERSUS
Mrs.Sandhya w/o Girish Badge
Age: 53 years, Occu.: Business & Household,
R/o.Nath Prangan, Garkheda Parisar,
Aurangabad.
Through General Power of Attorney,
Shri Girish Badge. ..Respondent
...
Advocate for Appellant : Mr.Thole V.I.
Advocate for Respondent : Mr.Vaidya A.R.
...
WITH
APPEAL FROM ORDER NO.21/2017
WITH CA/3004/2017 IN AO/21/2017
...
CORAM : M.S.SONAK, J.
DATE : 29.1.2018
ORAL JUDGMENT:-
1) The learned counsel for the parties agreed that both
(2) 5-AO 20 of 2017 & anr.
these Appeal from Orders can be disposed of by a common
Judgment and order, since, the orders impugned in these
two appeals are virtually identical.
2) Admitted. With the consent and request of the
learned counsel for the parties, these appeals are
disposed of finally today itself.
3) The main challenge in these appeals is to the orders
by which the Appeal Court has remanded the matters to the
Trial Court virtually for fresh adjudication in the light
of certain issues, which have been suggested by the
Appeal Court.
4) Mr.V.I.Thole learned counsel for the appellant
submits that none of the parameters or Rules 23, 23-A, 26
of Order 41 of Code of Civil Procedure were satisfied so
as to justify a remand. He submits that the application
under Order 41 Rule 22 taken out by the respondent at the
(3) 5-AO 20 of 2017 & anr.
highest makes reference to the respondent making out a
Demand Draft for payment of consideration to the
appellant. He points out that such evidence has already
been considered by the Trial Court, which has held that
such a unilateral action on the part of the respondent is
of no avail in the matter. He submits that there is
ample evidence on record, on the basis of which the
Appeal Court could have decided the matter itself,
without necessity of remand. He submits that when the
issues which have been suggested by the Appeal Court as
to maintainability of counter claim or the necessity of
joinder of plaintiff's husband as a party to the counter
claim, are basically issues of law, which could have been
and ought to have been decided by the Appeal Court itself
on the basis of material available on record. He points
out that the issues which have been framed by the Trial
Court infact encompass the issues now framed by the
Appeal Court and clearly this was not a case for remand.
On this basis, Mr.Thole submits that the impugned order
(4) 5-AO 20 of 2017 & anr.
to the extent of remand be set aside and direction be
issued to the Appeal Court to dispose of the appeal on
merits and in accordance with law.
5) Mr.A.R.Vaidya learned counsel for the respondent
submits that there is no infirmity in the order of
remand. He submits that adequate evidence was looked
into by the Appeal Court and it is only with the view to
afford adequate opportunity to all the parties that the
remand is ordered. He submits that the issue now
proposed by the Appeal Court are mixed issues of law and
facts and therefore, there is nothing wrong if the Appeal
Court chose to remand the matter with a view to afford
all parties equal and adequate opportunity to make good
their respective points before the Trial Court. He
points out that there is no prejudice to the appellant
since all the contentions have been kept open. Mr.Vaidya
learned counsel relied upon Narayanan vs. Kumaran and
others [(2004) 4 Supreme Court Cases, 26] to submit that
(5) 5-AO 20 of 2017 & anr.
these appeals are not maintainable because the appellant
has not demonstrated the existence of any substantial
question of law for their entertainment. On all these
grounds Mr.Vaidya submits that these appeals are liable
to be dismissed.
6) Rival contentions now fall for determination.
7) Narayanan (supra) holds that in view under Rule 1(u)
of Order 43(1) of the Code of Civil Procedure, 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 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 decree and not a mere order.
In these circumstances, it is quite safe to adopt that a
appeal under Order 43 Rule 1(u) should be heard only on
(6) 5-AO 20 of 2017 & anr.
the ground enumerated in Section 100. The appellant
under an appeal under Order 43 Rule 1(u) is not entitled
to agitate questions of facts. 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.
8) Keeping in view the aforesaid caveat, this Court
will have to focus only on such facts, conclusions and
decision, which have bearing on the order of remand and
will not canvass any findings and facts arrived at by the
lower Appeal Court. The decision in Narayanan (supra)
does not mean that this appeal is not maintainable in the
absence of framing of any substantial question of law,
but ruling mean that in case this Court is inclined to
entertain the appeal on merits i.e. on facts, conclusions
as have been recorded by the First Appeal Court, then
(7) 5-AO 20 of 2017 & anr.
there is necessity for satisfaction of the parameters
recorded in Section 100 of the Code of Civil Procedure.
In this case, since it is proposed to focus only on the
grounds, which have been prompted the First Appeal Court
to remand the matter to the Trial Court, the appeal as
instituted is maintainable and is entertained.
9) The Appeal Court has given broadly three reasons for
ordering the remand and the same are as follows:-
(a) The entertainment of application under Order 41
Rule 27 of the Code of Civil Procedure with regard
to additional evidence as to the making of Demand
Draft or for payment of consideration to the
appellant. This also includes reference to Income
Tax Return in which such payment was stated to be
reflected.
(b) The framing of additional issue as to
maintainability of the counter claim by the
(8) 5-AO 20 of 2017 & anr.
appellant.
(c) The maintainability of the counter claim in the
absence of joinder of the husband of the plaintiff as
a party.
10) From the first issue, it is not clear if there is no
evidence on record on basis of which the Appeal Court was
precluded from giving a finding one way or the other.
Trial Court has already held that on the basis of
evidence on record, all these at the highest indicate
some unilateral acts on the part of the plaintiff.
Whether such finding is right or wrong could have always
been decided by the Appeal Court and there was absolutely
no necessity of a remand for the said purpose.
11) The issue as to whether the counter claim is
maintainable or the issue as to whether counter claim is
required to be dismissed on the ground of non-joinder of
(9) 5-AO 20 of 2017 & anr.
any necessary party are again issues, which could have
been very well decided by the Appeal Court itself. If
the original issues of the Trial Court are perused, the
same are wide enough to include the issues of
maintainability of counter claim and maintainability of
the counter claim on the ground of non-joinder of
necessary party. In any case, these are issues of law,
which ought to have been decided by the Appeal Court
without remanding the matter to the lower Court.
12) It is settled position in law that orders of remand
are not to be lightly made. This is not a case where the
Trial Court had only decided the matter on the basis of
preliminary point and since such preliminary point has
reversed by the Appeal Court, a remand was necessary.
13) In Balasubramania Iyer Vs. Subbiah Thevar and
another [AIR 1965 Madras 417], it is held that power of
remand should not be lightly exercised and where the
( 10 ) 5-AO 20 of 2017 & anr.
Trial Court has disposed of Suit on merits, the Appeal
Court must dispose of appeal on merits and cannot avoid
its duty unless the Judgment and decree of the Trial
Court is wholly unintelligible.
14) In K.Krishna Reddy Vs. Special Deputy Collector,
Land Acquisition Unit 2, LMD Karimnagar, Andhra Pradesh
[(1988) 4 SCC, 163], the Supreme Court also held that an
order of remand should not be taken to a matter of
course. The power of remand should be sparingly
exercised. There should always be an endeavour to
dispose of the case by Appellate Court itself on merits.
15) Applying the aforesaid principles to the facts of
the present case, the impugned orders of remand are set
aside. The two appeals are restored to the file of the
Appeal Court and the Appeal Court is directed to dispose
of the appeals itself on their own merits and in
accordance with law.
( 11 ) 5-AO 20 of 2017 & anr.
16) It is made clear that this Court has not adverted to
the merits of the case and therefore, all contentions of
all parties on merits of the matter are kept open for
adjudication by the Appeal Court in accordance with law.
17) These two Appeal from Orders are accordingly
allowed. The impugned orders are set aside with the
aforesaid directions.
18) The parties to appear before the Appeal Court on
28.2.2018 at 11:00 a.m. and produce authenticated copy of
this order.
19) The Appeal Court is requested to dispose of the
Appeals as expeditiously as possible and in any case
within a period of six months from production of
authenticated copy of this order.
( 12 ) 5-AO 20 of 2017 & anr.
20) As the appeals are disposed of, pending civil
applications do not survive and the same are also
disposed of.
[M.S.SONAK, J.]
SPT/5-AO 20 of 2017 & anr.
