Bombay High Court
Antaji Rama Gangotri And Others vs Kasturbai Madhavrao Gangotri And ... on 23 January, 2018
Bench: M.S. Sonak
(1) 923-AO 15 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
923 APPEAL FROM ORDER NO.15 OF 2017
WITH CA/1982/2017 IN AO/15/2017
1. Antaji s/o Rama Gangotri
Age: 66 years, Occu.: Agri.,
R/o.: Village Rohi Pimpalgaon,
Tq.Mudhkhed, Dist.Nanded.
2. Sanjiv s/o. Antaji Gangotri
Age: 39 years, Occu.: Agri.,
R/o.Village Rohi Pimpalgaon,
Tq.Mudhkhed, Dist.Nanded.
3. Balaji s/o Antaji Gangotri
Age: 33 years, Rohi Pimpalgaon,
Tq.Mudhkhed, Dist.Nanded. ..Appellants
VERSUS
1. Kasturbai w/o Madhavrao Gangotri
Age: 64 years, Occu.: Household,
R/o.Village-Bhopala,
Tq. & Dist.Latur.
2. Ravikiran s/o Madhavrao Gangotri
Age: 42 years, Occu.: Labour,
R/o.Village Bopala,
Tq. & Dist.Latur.
3. Sandesh s/o Madhavrao Gangotri
Age: 37 years, Occu.: Service,
R/o.Village Bhopala,
Tq. & Dist.Latur. ..Respondents
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(2) 923-AO 15 of 2017
...
Advocate for Appellants : Ms.Madhuri Jain h/f.
Mr.S.S.Patunkar
Advocate for Respondents : Mr.M.D.Gitte
...
CORAM : M.S.SONAK, J.
DATE : 23rd January, 2018
ORAL JUDGMENT:-
1) Heard Ms.Madhuri Jain learned counsel, who holds for
Mr.S.S.Patunkar learned counsel for the appellants and
Mr.M.D.Gitte learned counsel for the respondents.
2) Rule. Rule is made returnable forthwith at the
request and consent of learned counsel for the parties.
3) This appeal takes exception to the impugned order
dated 1.9.2016 by which, the Appeal Court has remanded
the matter to the Trial Court by recasting the Issues as
originally framed and made some directions in respect to
alleged consent deed between the parties.
4) Infact the operative portion of the impugned order
(3) 923-AO 15 of 2017
is as follows:-
"O R D E R
1. Judgment and decree of the trial court is hereby
set aside, matter is remanded back to the learned
trial court for retrial as per direction given above.
2. Learned trial court is hereby directed to frame
the issues below Exh.23 as directed above and an
opportunity be given to the both parties to lead
their evidence if any.
3. Defendant no.1 is hereby directed to file
alleged consent deed on record if same is not in his
possession he may file an application before the
trial court and same be called from the revenue
authority.
4. Learned trial court is hereby directed matter be
reinstate in its original number and decided a fresh
as early as possible from the receipt of record.
5. Both parties are directed to appear before
learned trial court on 30.9.2016 positively.
6. Dictated and pronounced in open Court.
(4) 923-AO 15 of 2017
Sd/-
(V.K.Mande)
Adhoc District Judge-2,
Date: 01.09.2016 Nanded."
5) Ms.Jain learned counsel for the appellants submits
that none of the parameters of Rule 23-A or 25 of Order
41 of the Code of Civil Procedure were satisfied in the
present case and therefore, the impugned award of remand
is ultra vires. She submits that there is no difference
or substance in the issues recast by the Appeal Court and
the issues originally framed by the Trial Court. She
submits that the issue as to whether consent deed was
never signed by the husband of the plaintiff i.e.Madhav
or whether the signatures of Madhav was allegedly taken
on the blank stamp paper when he was in drunken stage,
were clearly framed and the Trial Court based upon the
evidence on record has answered such issues against the
original plaintiffs. She submits that in the
circumstances, actual consent deed was never produced on
(5) 923-AO 15 of 2017
record by both the parties was quite irrelevant and in
any case was not a sufficient ground to order remand. At
the highest, the Appeal Court on the basis of entire
material on record, could have re-assessed and revisited
the findings recorded by the Trial Court while disposing
of the Appeal instituted by the original plaintiffs.
6) Mr.M.D.Gitte, the learned counsel for the
respondents (original plaintiffs) submits that there is
no error in the Judgment and order of remand in the facts
and circumstances of the present case. He points out
that the consent deed was in possession of the present
appellants (defendants in the Suit) and even though the
same was never produced before the Trial Court, the Trial
Court has decided the matter in their favour on the basis
that such consent deed was validly executed by the
husband of the defendant no.1/original plaintiff no.1
i.e. Madhav, who is since deceased. He submits that on
the basis of the consent deed, the revenue authorities
(6) 923-AO 15 of 2017
effected some mutations in the entries in the revenue
records. In these circumstances, the Appeal Court has
directed the appellants (original defendants) to produce
consent deed on record. If they do not possess such
consent deed, the Appeal Court has granted the
respondents liberty to apply to the Trial Court for
production of such consent deed from the revenue
authorities. He submits that therefore, there is no case
made out to interfere in the impugned Judgment and order.
7) Upon taking into consideration rival contentions and
after perusing record as well as the impugned Judgment
and order, interference is warranted in the impugned
order for the reasons set out hereafter.
8) From the pleadings, it is clear that even the
originial plaintiffs had made reference to the consent
deed, but had alleged that such consent deed was a
product of fraud played upon them. Infact their
(7) 923-AO 15 of 2017
pleadings were that the appellants (original defendants)
obtained the signature of husband of the plaintiff no.1
on blank stamp paper when he was in drunken position by
creating a mis-impression of batai Vyawahar (partition).
This pleadings no doubt are denied by the defendants.
Issues which had framed are based upon these pleadings
and also other controversies between the parties. The
Trial Court framed the following issues:-
"ISSUES
1. Whether plaintiffs prove that under the
influence of liquor, defendants have obtained the
signature of Madhav Rama on blank stamp paper ?
2. Whether plaintiffs prove that behind the back of
deceased Madhav Rama defendants have executed
"Sammati Patra" on said stamp paper ?
3. Whether plaintiffs prove that mutation entries
no.523 and 1106 are illegal ?
4. Whether defendants prove that partition was
effected ?
(8) 923-AO 15 of 2017
5. Whether defendants prove that suit is bad for
want of the principles of estoppel ?
6. Whether plaintiffs prove that they are entitled
for declaration as sought for ?
7. Whether plaintiffs prove that they are entitled
for possession as claimed for ?
8. Whether plaintiffs prove that they are entitled
for perpetual injunction as sought for ?
9. Whether defendants prove that they are entitled
for compensator costs as prayed for ?
10. What order, decree and costs ?"
9) In the context of the consent deed, issue Nos.1, 2
and 3 are absolutely relevant, as they cover all the
areas of the dispute between the parties.
10) No doubt, after assessing the evidence on record,
the Trial Court answered such issues against the original
(9) 923-AO 15 of 2017
plaintiffs. If, on the basis of evidence on record, the
Appeal Court were to come with a different view and
reverses the findings recorded by the Trial Court, that
was a different matter. However, the Appeal Court, on
the ground that the opportunity is required to be
afforded to the original plaintiffs to produce on record,
the consent deed, had chosen to set aside the impugned
decree and to remand the matter for virtually a de-novo
trial. Such a ground of action does not appear to be
justified under Rules 23, 23-A, 25 of Order 41 of the
Code of Civil Procedure.
11) On the sole ground that the consent deed was not
produced on record, there was no necessity to set aside
the impugned decree and to remand the matter. There is
nothing on record to indicate that the respondents
(original plaintiffs) in the course of the trial before
the Trial Judge took any steps with regard to the
production of the consent deed. There is nothing on
( 10 ) 923-AO 15 of 2017
record to indicate that any notice was issued to the
defendants to produce the same. Since, it is the case of
the defendants that such consent deed was not in their
possession, there is also nothing on record to indicate
that any steps were taken by the original plaintifs to
summon the revenue authority in whose custody the said
consent deed was allegedly held. Instead, the original
plaintiffs chose to lead evidence on the issues framed.
The issues as framed by the Trial Court very clearly
indicate the issue with regard to the fabrication of the
consent deed. Since, such evidence has already been led
by the original plaintiffs and has been countered by the
original defendants, it was for the Appeal Court to have
re-assessed such evidence in order to determine whether
the findings of fact written by the Trial Judge warranted
interference. There was no case made out for remand.
12) Atleast, prima-facie, it does not appear to be any
significant different in the issues, which have been
( 11 ) 923-AO 15 of 2017
recast by the Appeal Court in the impugned award and the
issues as originally framed by the Trial Court. The
issues framed/recast by the Appeal Court read as
follows:-
"15. Therefore, it is just and proper to frame
following issues. As per the pleading of both the
parties and requires to decide the same.
I S S U E S
1. Do plaintiffs prove their ownership over the
suit landed properties ?
2. Do plaintiff prove suit property was given to
the defendant No.1 on oral Batai basis and to that
effect defendant No.1 obtained signature of Madhav on
blank stamp paper under influence of liquor ?
3. Does defendant No.1 prove deceased Madhav agreed
to alienate his shares land to him for consideration
of Rs.40,000/- in the year 1991 ?
4. Does defendant No.1 prove deceased Madhav by
obtaining consideration amount of Rs.40,000/-, he
executed lawful consent deed in his favour and given
( 12 ) 923-AO 15 of 2017
suit land to him ?
5. Does defendant No.1 prove that partition was
effected in the year 1991 in between four brother of
their ancestral property ?
6. Does defendant No.1 prove deceased Madhav by
obtaining amount of Rs.40,000/- purchased landed
property at village Bopla, Tal.Dist.Latur ?
7. Are plaintiff entitle a relief of declaration as
prayed for ?
8. Are plaintiff entitle recovery of possession of
suit land from the defendant ?
9. Are plaintiff entitled a relief of perpetual
injunction as prayed for ?
10. Are defendant entitle the compensatory cost as
prayed for ?
11. What order and decree ?"
13) If the aforesaid re-framed/recast issues are
( 13 ) 923-AO 15 of 2017
compared with the issues originally framed by the Trial
Court, it cannot be really said that there was
substantive difference between the two. In any case,
merely because the issues may be required to be recast,
that by itself, does not mean that the matter warrants a
remand and that too, remand without any restrictions for
virtually retrial of the Suit. On the basis of evidence
on record, the Appeal Court could have itself decided the
recast issues, if indeed, any recasting was necessary.
14) This is not a case where the Trial Court had
disposed of the Suit on some preliminary points and
therefore, the provisions of Order 41 Rule 23 were in any
manner attracted. No doubt, under Order 41 Rule 23, the
Appeal Court, if it considers it necessary in the
interest of justice, may also remand a case and further
direct the Trial Court that all the issues are required
to be tried, in case so remanded. However, even before
exercise of such powers, the Appeal Court has to be
( 14 ) 923-AO 15 of 2017
satisfied that the interest of justice requires such
remand. Power cannot be lightly exercised by the Appeal
Court.
15) In Balasubramania Iyer Vs. Subbiah Thevar and
another [AIR 1965 Madras 417], it is held that where the
Trial Court has disposed of a Suit on merits, the Appeal
Court must normally dispose of the Appeal on merits and
not avoid this duty by lightly exercising the power of
remand.
16) Infact in K.Krishna Reddy Vs. Special Deputy
Collector, Land Acquisition Unit 2, LMD Karimnagar,
Andhra Pradesh [(1988) 4 SCC, 163], the Supreme Court
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 ) 923-AO 15 of 2017
17) In Niranjan Lal Vs. U.T.I. and others [AIR 2007
Raj., 18] it is held that the tendency to remand the case
in toto after setting aside the Judgment and decree of
the Trial Court and the tendency to direct de novo trial
in a routine manner, is against the tenor of law. The
Appellate court is expected to exercise its powers within
the confines to Rules 23 to 26-A of Order 41 of the Code
of Civil Procedure.
18) In Sk.Ibrahim s/o Sk.Mohamood and others Vs.
Sk.Mehmood s/o. Sk.Vazir [AIR 2003 Bom., 357] this Court
has held that where the parties were aware of their
respective cases and led evidence on the said basis,
omission to frame some issue is no ground for remand
unless, such omission was fatal to the case of either of
the parties.
19) In this case, the provisions of order 41 Rule 23-A
( 16 ) 923-AO 15 of 2017
are also not attracted. Similarly, there is no question
of applicability of Order 41 Rule 25 as well.
20) Therefore, on cumulative consideration of the
aforesaid circumstances, the impugned order is set aside.
21) Since, the Appeal Court has not at all examined the
appeal instituted by the respondent on its own merits, it
is only appropriate that the matter be remanded to the
Appeal Court for disposal of the appeal in accordance of
law and on its own merits as expeditiously as possible
and in any case within a period of six months from the
date of production of an authenticated copy of this
order.
22) It is clarified that this Court has not examined the
merits of the matter, except for the purpose of examining
whether any case was made out before the Appeal Court to
remand the Suit before the Trial Court. Therefore,
( 17 ) 923-AO 15 of 2017
observations in this order need not influence the Appeal
Court while disposing of appeal on its own merits and in
accordance with law.
23) The appeal is allowed to the aforesaid extent. There
shall be no order as to costs.
24) As the appeal from order is disposed of, the Civil
application for stay does not survive and it is also
disposed of.
25) The parties to appear before the Appeal Court on
12.2.2018 at 11:00 a.m. and file authenticated copy of
this order.
[M.S.SONAK, J.]
SPT/923-AO 15 of 2017
