Bombay High Court
Shri. Parag Babasaheb Bamne Thr. Power ... vs Shri. Pandurang Anandrao Rayte on 12 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:1568
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Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.- 1 OF 2023
WITH
CIVIL APPLICATION NO. 1 OF 2023
Shri Parag Babasaheb Bamne, ...Appellant
Age 32 years, Occu - Service,
R/at Prankur Plot No.10,
Road No.7, Sector No.19,
New Panvel, District Raigad,
through power of attorney holder
Babasaheb Dhondiba Bamne,
age 72 years, residing at as above.
Vs.
Shri Pandurang Anandrao Rayte, ...Respondent
Age 55 years, Occu - Service,
R/o S. Ni.27/5, Ambegaon (BK),
Taluka Haveli, District Pune
Mr. Sudhir V. Sadavarte, for Appellant.
Mr.Sanjeev Sawant with Mr. Heramb Kadam with Ms.
Samiksha Mane, for the Respondent.
1/30
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CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 19th AUGUST, 2023
PRONOUNCED ON:- 12 JANUARY, 2024
ORDER:
-
1) This Appeal is directed against a judgment and order
dated 18th June, 2019, passed by the learned District Judge
whereby the learned District Judge was persuaded to partly
allow the Appeal, set aside the judgment and decree dated 25 th
April, 2017, passed by the learned Civil Judge, Senior Division,
Pune in Special Civil Suit No. 1044 of 2010 and remand the suit
for fresh decision on the issue framed by the learned District
Judge in paragraph Nos. 60 and 75 of the impugned judgment
and order, purportedly under Order 41, Rule 25 of the Code of
Civil Procedure, 1908 ("the Code, 1908").
2) Shorn of unnecessary details, background facts necessary
for the determination of this Appeal can be summarised as
under:-
(a) For the sake of the convenience and clarity, the parties are
hereinafter referred to in the capacity in which they were
arrayed before the Civil Court.
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(b) A suit for cancellation of agreement for sale, possession,
declaration and perpetual injunction was instituted with the
assertions that the plaintiff is the owner of the property,
situated at Survey No.27, Hissa No. 5, admeasuring 0.1 - R with
a ground floor structure admeasuring 67.41 sq. meters and 630
sq. ft. on the 1st floor, at village Ambegaon Budruk, Taluka
Haveli, District - Pune ("the suit property"). The plaintiff had
availed loans from Canara Bank, Kothrud, Pune and Bharati
Co-operative Bank, Pune to construct the building. The loan
was outstanding.
(c) In the month of August, 2008, the plaintiff met with an
accident and, thus, could not pay the installments of the loan.
The plaintiff, thus, decided to raise funds to repay the loan by
mortgaging the ground floor of the suit property. Post
negotiations, the defendant agreed to advance a sum of
Rs.9,00,000/- against the mortgage of the ground floor. The
parties agreed that the then value of the suit property was
Rs.23,00,000/-. It was agreed that in the event the mortgage
money was not repaid within three years, the plaintiff would
execute the Sale-deed of the suit property in favour of the
defendant upon payment of the balance consideration.
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(d) The plaintiff asserted, taking undue advantage of the ill-
health of the plaintiff, the defendant got executed a registered
agreement for sale on 12th September, 2008. Possession of the
ground floor premises was obtained illegally. The defendant also
threatened the plaintiff with dire consequences. The plaintiff
was constrained to issue a notice to the defendant and also
lodge a complaint with the police. The plaintiff apprehended
that the defendant would dispossess him of the 1st floor of the
suit property as well. The plaintiff was, thus, constrained to
institute the suit seeking reliefs of declaration, possession and
perpetual injunction.
(e) The defendant resisted the claim by filing a written
statement and counterclaim. The defendant claimed that the
plaintiff had executed the agreement for sale dated 28th August,
2008 after fully understanding the import of the said document.
In accordance with the terms of the said agreement for sale, the
defendant had parted with entire consideration of
Rs.9,00,000/-. In fact, the defendant was made to pay a sum of
Rs1,25,000/- over and above the agreed consideration on the
pretext that the plaintiff required the said amount upfront to
repay the loan raised from the bank. It was categorically denied
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that the agreement for sale was get executed by practicing fraud
or misrepresentation.
(f) In pursuance of the said agreement for sale, the defendant
was put in possession of the ground floor premises on 31st
December, 2008. As the plaintiff avoided to execute the Sale-
deed, the defendant had issued a notice on 6th January, 2010.
In reply thereto dated 15th January, 2010, the plaintiff had
acknowledged the receipt of consideration as well as delivery of
possession of the premises on the ground floor. The plaintiff,
thus, did not approach the Court with clean hands. On these
and other grounds, the defendant prayed for the dismissal of the
suit, and, by way of counterclaim, also sought the reliefs of
specific performance of the agreement for sale dated 12th
September, 2008 by directing the plaintiff to execute the
conveyance of the suit property, perpetual injunction to restrain
the plaintiff from causing obstruction to the possession of the
defendant over the suit property and restraining the plaintiff
from alienating or otherwise creating third-party interest in the
suit property and a decree for the repayment of the sum of
Rs.1,25,000/-, which the defendant was made to pay allegedly
over and above the agreed consideration, and compensation.
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(g) The learned Civil Judge recorded the evidence of the
plaintiff and defendant. Documents were tendered for the
perusal of the Court.
(h) After appraisal of the evidence and material on record, the
learned Civil Judge was persuaded to hold that the plaintiff
failed to establish that the instrument in question dated 12th
September, 2008 was illegal and the defendant had illegally
obtained the possession of the suit property. The learned Judge,
however, found that the plaintiff was in possession of the 1st
floor of the suit property. The defendant was also held to be
entitled to specific performance of the agreement for sale dated
12th September, 2008. Thus, the plaintiff was directed to
execute the Sale-deed in favour of the defendant within two
months from the date of the order. The plaintiff was also
restrained from causing obstruction to the possession of the
defendant over the ground floor of the suit property and from
alienating or creating third-party interest till the execution of
the Sale-deed in favour of the defendant. In effect, the suit came
to be dismissed and the counterclaim was allowed to the extent
of execution of the Sale-deed and perpetual injunction.
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(i) Being aggrieved the plaintiff-appellant preferred an Appeal
being Civil Appeal No. 389 of 2017. By impugned judgment and
order, the Appellate Court was persuaded to remit the suit for a
fresh determination. The learned District Judge was of the view
that the trial Court had not settled proper issues, which arose
for determination in the suit as well as the counterclaim. After
extensively noting the pleadings of the parties, the learned
District Judge observed that the trial court did not properly
appreciate the case set up by the parties.
(i) The learned District Judge was of the view that no case for
adducing additional evidence under Order 41 Rule 27 of the
Code, 1908 was made out. Nor the matter was governed by the
provisions contained in Order 41 Rule 23 as the suit was not
decided on a preliminary issue. The learned District Judge
thereafter proceeded to consider the justifiability of remand
under Rule 25 of Order 41. After noting pleadings of the parties
copiously, the learned District Judge considered it appropriate
to frame 11 issues, in the suit, and 9 issues, in the
counterclaim, which would be noted hereinafter. Re-trial was
considered necessary on those issues and, thus, the remand.
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3) Being aggrieved the defendant had initially preferred
Second Appeal. By an order dated 26th September, 2019, the
Appellate Court had stayed the impugned order for a period of
four weeks. On 22nd July, 2019, this Court had continued the
stay granted by the Appellate Court. Pursuant to an order dated
9th December, 2022, the Second Appeal came to be converted
into an Appeal From Order, as it was essentially against an
order of remand.
4) I have heard Mr. Sudhir Sadavarte, the learned Counsel
for the appellant-defendant, and Mr. Sanjeev Sawant, the
learned Counsel for the respondent-plaintiff, at some length.
The learned Counsel took the Court through the pleadings,
evidence and material on record.
5) Mr. Sadavarte urged that the impugned judgment and
order is singularly infirm. The learned District Judge has
completely misconstrued the power of the Appellate Court to
remand a suit for a fresh determination. Having noted that no
case for adducing additional evidence under Order 41 Rule 27 of
the Code, 1908 was made out and the consequent remand on
that count, and the case was also not covered by Rule 23 Order
41, the learned District Judge could not has passed an order of
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remand under Rule 25 of the Code, 1908, in the fashion in
which it has been passed. The Appellate Court has not merely
framed the issues and remitted the issues for determination by
the trial Court but the Appeal has been disposed and retrial is
ordered, purportedly invoking Rule 25 of the Code, 1908, which
is legally impermissible.
6) Mr. Sadavarte would urge that even otherwise no case of
remand was made out. The practice of indiscriminate remand
where it is not warranted by the facts of the case has been
deprecated. Such unjustified remands unnecessarily prolong
the life of the litigation. Framing 20 odd issues, which do not
appear to have any relevance to the controversy at hand, and
directing a retrial on those issues, was wholly unwarranted,
submitted Mr. Sadavarte. The learned District Judge, according
to Mr. Sadavarte, did not keep in view the principles which
govern the power of the Appellate Court to order a remand.
7) To lend support to this submission, Mr. Sadavarte placed
a strong reliance on the judgments of the Supreme Court in the
cases of Zarif Ahmad (D) through Lrs. And Others Vs. Mohd.
Farooq1 and Smt. Nirmala Devi Vs. Gurgaon Scheduled Caste
1 (2015) 13 SCC 673
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Vimukta Agriculture Thrift and Credit Society Limited and
Others2 .
8) Mr. Sawant, the learned Counsel for the respondent-
plaintiff made an endeavour to support the impugned order. Mr.
Sawant would urge that the Appellate Court had elaborately
considered the pleadings of the parties and arrived at a
justifiable conclusion that the Trial Court did not appreciate the
real controversy between the parties. The trial Court had not
settled the proper issues. An omnibus issue as to whether the
defendant was entitled to the prayers in the Counter Claim, was
framed by the trial Court. Therefore, the Appellate Court was
fully justified in framing the correct issues which arose for
determination and remitting the suit for retrial.
9) Mr. Sawant would urge there would be no prejudice to the
appellant-defendant as he would get an efficacious opportunity
to adduce evidence before the trial Court, if he chooses to. Mr.
Sawant would further urge that in the event, the Court finds
that few issues framed by the Appellate Court are not germane
to the determination of the controversy between the parties, this
Court can direct framing of correct issues or frame the issues
on which suit ought to be adjudicated by the trial Court.
2 (2021) 18 SCC 785
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However, according to Mr. Sawant, there is no ground to
interfere with the impugned order, which advances the cause of
a just decision, by providing parties an effective opportunity of
hearing, on the real question in controversy. It was submitted
that as the parties have been litigating since the year 2010, at
this length of time, interference with the impugned order would
further delay the adjudication of the dispute between the
parties.
10) I have carefully considered the aforesaid submissions.
11) To begin with the powers of the Appellate Court. Section
107 of the Code of Civil Procedure, 1907, inter alia, provides
that, subject to such conditions and limitations, as may be
prescribed, the Appellate court shall have power (b) to remand a
case (c) to frame issue and refer them for trial, (d) to take
additional evidence or to require such evidence to be taken.
Sub-section (2) of Section 107 further clarifies that, 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.
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12) The relevant provisions of Order 41 which regulate the
procedure of Appeals from original decrees, in the matter of
power of remand, deserve to be noted. In effect, the appellate
court is vested with power to remand the suit to the trial court
in three situations. The provisions contained in Rules 23, 23-A
and 25 of Order 41, read as under :
"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 sent a copy of its judgment and
order to the Court from whose decree the appeal is
preferred, with 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.
23-A 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 re-trial 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
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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 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
therefor within such time as may be fixed by the
Appellate Court or extended by it from time to time."
13) Under Rule 23, the Appellate Court can remand a case
before it, where the Court from whose decree appeal was
preferred has disposed of the suit upon a preliminary point and
that decree was reversed in appeal. Rule 23-A is in the nature
of a residuary power of remand. It deals with the power of the
Appellate Court in an appeal against the decree which has been
disposed of otherwise than on a preliminary point. Rule 25, on
the other hand, envisages the framing of issues by the Appellate
Court where it considers that the trial Court has omitted to
frame or try any issue or determine any question of fact
essential to the right decision of the suit upon merits and refer
the same for trial to the Court from whose decree the appeal is
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preferred. In such cases, the appellate Court shall direct the
trial Court to take additional evidence, if required.
14) If the remand is restricted to decision on an issue or
question of fact which the appellate Court considered necessary
for a just decision of the suit, as is evident, the trial Court is
enjoined to record the evidence and return a finding thereon,
along with the reasons therefor to the appellate Court. It implies
that the appeal remains pending on the file of the appellate
Court and after such findings on the issues so framed and
referred to the trial Court are returned, the appeal is to be
finally determined.
15) A conjoint reading of the aforesaid Rule 25, with Rule 27
of Order 41 would indicate that there are two options available
to the Appellate Court. First, it may record the evidence itself by
permitting the parties to produce evidence before it as per Rule
27 of Order 41 or direct the court from whose decree the appeal
under consideration has arisen to do so.
16) In the case at hand, as noted above, the appellate Court
was alive to the fact that Rule 23 of Order 41 was not attracted
as the suit was not disposed of on a preliminary issue. The
appellate Court was, however, of the view that the case merited
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the remand under Rule 25 of Order 41, as the learned Civil
Judge had not framed proper issues. However, the learned
District Judge did not follow the mandate of Rule 25 of Order 41
to the fullest. Sub-Rule (2) of Rule 26 of Order 41 emphasises
that where the appellate Court resorts to remand under Rule 25
and seeks determination from the trial Court on the issues
framed or question of facts indicated, the Appellate Court after
considering any memorandum of objection to any of the findings
so recorded by the trial Court shall proceed to determine the
Appeal. Instead the appellate Court, in the instant case,
directed a re-trial on the issues which it considered were
required to be framed and decided. The remand, thus, partook
the character of the remand envisaged by Rule 23-A of Order 41.
17) A useful reference in this context can be made to a
decision of the Supreme Court in the case of Jegannathan V/s.
Raju Sigamani and Anr.3 where the three situations in which the
appellate Court can order the remand and the consequences
which such remands entail, were expounded as under :
"6. Order 41 Rule 23 is invocable by the appellate
Court where the appeal has arisen from the decree
passed on a preliminary point. In other words, where
the entire suit has been disposed of by the trial Court
3 (2012) 5 SCC 540
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on a preliminary point and such decree is reversed in
appeal and the appellate Court thinks proper to remand
the case for fresh disposal. While doing so, the appellate
Court may issue further direction for trial of certain
issues.
7. Order 41 Rule 23A has been inserted in the Code by
Act No. 104 of 1976 w.e.f. February 1, 1977. According
to Order 41 Rule 23A of the Code, the appellate Court
may remand the suit to the trial Court even though
such suit has been disposed of on merits. It provides
that where the trial Court has disposed of the Suit on
merits and the decree is reversed in appeal and the
appellate Court considers that retrial is necessary, the
appellate Court may remand the suit to the trial Court.
8. Insofar as Order 41 Rule 25 of the Code is concerned,
the appellate Court continues to be in seisin of the
matter; it calls upon the trial Court to record the
finding on some issue or issues and send that finding to
the appellate Court. The power under Order 41 Rule 25
is invoked by the appellate Court where it holds that the
trial Court that passed the decree omitted to frame or
try any issue or determine any question of fact essential
to decide the matter finally. The appellate Court while
remitting some issue or issues, may direct the trial
Court to take additional evidence on such issue/s.
9. Insofar as the present case is concerned, the trial
Court had disposed of the suit on merits and not on a
preliminary issue. The first appellate Court set aside
the judgment and decree of the trial Court and directed
the trial Court to decide the suit afresh after giving
parties an opportunity to lead evidence - oral as well as
documentary. The nature of the order passed by the
appellate Court leaves no manner of doubt that such
order has been passed by the appellate Court in
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exercise of its power under Order 41 Rule 23A of the
Code."
18) At this stage, it may be expedient to note the issues settled
by the trial Court and the findings rendered thereon. They read
as under :
TRIAL COURT ISSUES & FINDINGS
Sr. Issues Findings
Nos.
1. Whether plaintiff proves that
document in respect of the suit
property bearing No. 7142 dated ... In the negative.
12th September, 2008 is illegal ?
2. Whether plaintiff proves that,
defendant has illegally obtained ... In the negative.
possession of suit property from
plaintiff ?
3 Whether plaintiff proves that, he is
in possession over first floor of the ... In the affirmative.
suit property ?
4 Whether plaintiff proves that he is ...Of the ground
in possession over suit property ? floor only.
5 Is plaintiff entitled for relief, as ... In the negative.
prayed ?
6 Is defendant entitled for counter ...Partly.
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claim, as sought ?
7 What order and decree ? ... As per final order.
19) In the opinion of the learned District Judge, the trial
Court ought to have framed following issues in the suit :
APPELLATE COURT ISSUES - SUIT
1. Whether plaintiff prove that he was supposed to execute
mortgage-deed in favour of defendant for raising funds for
clearing loan of Canara and Bharati co-operative bank as per
the talks in between them?
2. Whether plaintiff met with an accident on Sinhagad
Road in Anandnagar on 27/08/2008 therefore, he could not
able to pay monthly installment of the loan amount due to the
medical expenditure and was under tremendous pressure due
to financial constraints?
3. Whether plaintiff further prove that defendant forcibly
compelled him to take discharge from the Bharti Hospital on his
own risk when the concern doctor were not ready to give
discharge for the purpose of execution of mortgage-deed
however, defendant got executed under misrepresentation
agreement to sale ?
4. Whether defendant took forcible possession from the
plaintiff of the ground floor on 01/12/2008 using muscle
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powers & also got installed electrical meter unauthorizedly by
force and pressure?
5. Whether plaintiff is entitled for the declaration that the
agreement to sale bearing registered document No. 7142 dt.
12/09/2008 is ab initio, illegal, void and not binding upon the
rights of the plaintiffs ?
6. Whether plaintiff is entitled for the declaration that the
agreement to sale is cancelled permanently as prayed?
7. Whether plaintiff is entitled for the declaration that the
possession taken by the defendant from the plaintiff is illegal
and ab initio void ?
8. Whether plaintiff is entitled for the declaration that
defendant have no right, title, interest or authority to deal with
the suit property by any way?
9. Whether plaintiff is entitled for the permanent
injunction sought vide prayer clause 'c'?
10. Whether plaintiff is entitled for the monthly
compensation @Rs. 2,000/- total Rs. 34,000/- till the receipt of
vacant & peaceful possession from the defendants ?
11. What order, cost and decree ?"
20) Likewise, in the Counter Claim, according to the learned
District Judge, the Trial Court ought to have framed the
following issues :
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APPELLATE COURT ISSUES - COUNTER CLAIM
1. Whether respondent / original defendant, Le.,
plaintiff in counterclaim prove that original plaintiff &
his wife Shobha Rayte were agreed to sale the suit
property outrightly & it was not mortgaged transaction ?
2. Whether respondent / original defendant, i.e.,
plaintiff in counterclaim prove that original plaintiff /
defendant in counterclaim agreed to sale ground floor for
total consideration of Rs. 9 lacs after vacating the ground
floor which was in tenant's possession ?
3. Whether respondent / original defendant, i.e.,
plaintiff in counterclaim prove that he paid cash Rs.
25,000/- and Rs. 1 lac by a self cheque dt. 08/08/2008
drawn on Bank Of Maharashtra Dhakanwadi branch
total Rs. 1,25,000/- towards earnest amount for
repayment of the loan dues of Canara Bank?
4. Whether respondent / original defendant, ie., plaintiff
in counterclaim prove that advocate Rasal of original
plaintiff prepared and finalized draft of agreement to sale
& clause No. 22 was added behind back of the
respondent / original defendant which was not agreed to
him?
5. Whether respondent / original defendant, i.e.,
plaintiff in counterclaim prove that after payment of
entire sale amount, original plaintiff obtained possession
6-AO-1-23+CAA-1-23.DOC
of the first floor from the tenant on 28/12/2008 &
plaintiff shifted with family members and utensils on
first floor on 30/12/2008 and handed over the vacant
possession to respondent / original defendant ie, plaintiff
in counterclaim on 31/12/2008 ?
6. Whether respondent / original defendant, i.e.,
plaintiff in counterclaim prove that plaintiff with
malafide intention and ulterior motive started harassing
the original defendant, i.e., plaintiff in counterclaim ?
7. Whether defendant in counterclaim, i.e., original
plaintiff prove that plaintiff in counterclaim, i.e., original
defendant trying to grab entire suit property?
8. Whether respondent / original defendant, i.e.,
plaintiff in counterclaim is entitled for the directions
sought to execute the sale-deed as prayed?
9. What order, decree and cost?
21) Whether the remand for trial on aforesaid issues is
justifiable ? It is trite, an omission to frame issue where the
parties were fully aware of the case set up by the adversary and
the true question in controversy and adduce evidence, does not
justify the remand. The Code has undoubtedly given power to
the appellate Court to order the remand in different situations.
However, the power to remand the suit for retrial is not
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uncanalized or unbridled. An indiscriminate remand without
recording a finding that the appellate Court is not equipped to
decide the matter, on merits, does not advance the cause of
justice. Such remand impedes the expeditious conclusion of the
journey of litigation, where there is hierarchy of courts.
Unjustified remands have been deprecated. The appellate Court
is expected to be cautious and circumspect in ordering remand.
22) In the case of Nirmala Devi (supra), on which reliance was
placed by Mr. Sadavarte, the Supreme Court after adverting to
earlier decisions in P. Purushotham Reddy V/s. Pratap Steels
Ltd.4 and Nedunuri Kameswaramma V/s. Sampati Subba Rao 5
observed as under :
"6. In this context, we may also refer to a decision
in Nedunuri Kameswaramma (supra), wherein it has
been held that "where the parties were fully aware about
the rival case and led the evidence not only in support of
their contentions but in refutation of those of the other
side, it cannot be said that the absence of an issue was
fatal to the case, or that there was that mistrial which
vitiates proceedings. We have referred to this judgment
solely for the purpose of the counterclaim. As we have
noted earlier, the issue pertained to denial of the
ownership of the plaintiff and assertion of the same by
the defendants and, therefore, the plaintiff was well aware
4 (2002) 2 SCC 686
5 AIR 1963 SC 884
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that there was refutation of the claim. The counterclaim
was not, in that way, an independent claim.
7. In view of the aforesaid, the High Court should have
been well advised to dwell upon the merits of the case
and should not have remanded the matter to the trial
court."
23) In the case of P. Purushotham Reddy (supra), the Supreme
Court had, inter alia, observed as under :
"........In 1976, Rule 23-A has been inserted in Order 41
which provides for a remand by an appellate court
hearing an appeal against a decree if (i) the trial court
disposed of the case otherwise than on a preliminary
point, and (ii) the decree is reversed in appeal and a
retrial is considered necessary. On twin conditions being
satisfied, the appellate court can exercise the same power
of remand under Rule 23-A as it is under Rule 23. After
the amendment, all the cases of wholesale remand are
covered by Rule 23 and 23-A. In view of the express
provisions of these Rules, the High Court cannot have
recourse to its inherent powers to make a remand
because, as held in Mehendra Manilal Nanavati v/s.
Sushila Mahendra Nanavati6 (AIR p. 399), it is well settled
that inherent powers can be availed of ex debito justitiae
only in the absence of express provisions in the Code. It
is only in exceptional cases where the court may now
exercise the power of remand dehors Rules 23 and 23-A.
To wit, the superior Court, if it finds that the judgment
under appeal has not disposed of the case satisfactorily
in the manner required by Order 20 Rule 3 or Order 41
Rule 31 CPC and hence it is no judgment in the eye of the
law, it may set aside the same and send the matter back
6 (AIR 1965) SC 364
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for rewriting the judgment so as to protect valuable rights
of the parties. An appellate court should be circumspect
in ordering a remand when the case is not covered either
by Rule 23 or Rule 23-A or Rule 25 CPC. An
unwarranted order of remand gives the litigation an
undeserved lease of life and, therefore, must be avoided."
24) A similar view was recorded by the Supreme Court in the
case of Zarif Ahmad (supra),on which reliance was placed by Mr.
Sadavarte. The Supreme Court also adverted to the decision in
P.Purushotham Reddy (supra) and enunciated the law as
under :
"13. No doubt, Section 107 of CPC empowers the
appellate court to remand a case, but it simultaneously
empowers the appellate court to take additional evidence
or to require such evidence to be taken. Rule 24 of Order
XLI CPC, provides that where evidence on record is
sufficient, appellate court may determine the case finally.
It is not a healthy practice to remand a case to trial court
unless it is necessary to do so as it makes the parties to
wait for the final decision of a case for the period which is
avoidable. Only in rare situations, a case should be
remanded e.g. when the trial court has disposed of a suit
on a preliminary issue without recording evidence and
giving its decision on the rest of the issues, but it is not
so in the present case."
25) Reverting to the facts of the case, as noted above, the
learned District Judge was of the view that the issues were not
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properly settled. What was at the heart of the dispute ? It was
the real nature of the transaction evidenced by the Agreement
for Sale dated 12 September 2008.
26) The trial Court found that the Plaintiff did not dispute
execution of the said Agreement for Sale. The Plaintiff alleged
fraud, but did not furnish particulars thereof. The Plaintiff
alleged that it was agreed between the parties that the
transaction would be in the nature of a mortgage. The trial
Court found the said contention of the Plaintiff was not borne
out by the terms of the instrument and the attendant
circumstances. The trial Court noted that the Plaintiff
acknowledged the receipt of the entire consideration under the
said instrument. The Plaintiff also acknowledged delivery of the
possession of ground floor of the premises. Holding thus, the
trial Court found no merit in the claim of the Plaintiff that the
said agreement for sale was illegal, or that the possession of the
ground floor premises was obtained illegally.
27) Conversely, the trial Court found the Defendant had
parted with the entire consideration under the Agreement for
Sale. He was put in possession of the ground floor and he had
sought specific performance of the contract by issuing notice to
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the Plaintiff and what was required to specifically perform the
contract was only execution of the sale deed in favour of the
Defendant.
28) In the backdrop of the aforesaid determination by the trial
Court, the real question which the Appellate Court ought to
have posed unto itself, was whether there was adequate
evidence on record to equip and judge the legality and
correctness of the findings recorded by the Trial Court. Each
party was aware of the case of the adversary. It did not appear
that the failure on the part of the trial Court to frame a
particular issue, caused grave prejudice to either of the parties.
The appellate Court, in any event, could not have framed as
many as 20 issues, as extracted above. Many of the issues
framed by the Appellate Court are wholly irrelevant for the
determination of the controversy between the parties. The trial
on the issues framed by the appellate Court would transgress
the contours of dispute between the parties and would
necessitate adducing of evidence which has no bearing upon the
said dispute.
29) Framing of issue in a suit is a matter of crucial salience.
Framing of proper issues is imperative to facilitate a correct
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decision of the suit. If issues are properly framed, the
controversy between the parties is narrowed down and,
thereupon, the real dispute between the parties is correctly
determined.
30) In the case of Sri Gangai Vinayagar Temple and Anr. V/s.
Meenakshi Ammal and Ors.7 a three Judge Bench of the
Supreme Court underscored the importance of framing of
correct issues, as under :
"15..... Issues settled by the court under Order 14 CPC
constitute the crystallisation of the conflict of the
distillation of the dispute between the parties to the lis,
and are in the nature of disputed questions of fact and/or
of law. While discharging this primary function, the
court is expected to peruse the pleadings of the parties in
order to extract their essence, analyse the allegations of
the parties and the contents of the documents produced
by them, and, thereafter, proceed to frame the issues."
31) On the aforesaid touchstone, if the issues framed by the
Appellate Court (extracted above), are tested, the danger of the
trial getting distracted and digressed to the matters which are
not at all germane to the determination of the real dispute
between the parties as regards the nature and true import of the
transaction evidenced by the agreement for Sale dated 12
September 2008, becomes clear and present.
7 (2015) 3 SCC 624
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32) It is true, the trial Court had framed only one
compendious issue as to the entitlement of the Defendant to the
reliefs claimed in the Counter Claim. Nonetheless, the parties
were fully cognizant that the Defendant sought specific
performance of the said agreement to the extent of execution of
the sale deed and perpetual injunction to protect his possession
and refund of a sum of Rs.1,25,000/- which he claimed to have
paid over and above the agreed consideration. The trial Court
could have framed separate issues on each of these prayers.
However, in the facts of the case, it does not appear that the
Plaintiff was prejudiced on account of such compendious issue.
33) In the aforesaid view of the matter, an unbridled remand
for adjudication of the 20 odd issues, without recording a
finding that the Appellate Court was not equipped to finally
decide the appeal on the basis of the evidence and material
available on record, was clearly in excess of the jurisdiction
conferred on the Appellate Court under the provisions of the
Code.
34) The submission of Mr. Sawant that the remand is
conducive for a just decision of the case as it provides an
opportunity to both the parties to lead evidence, does not merit
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countenance. An unjustified remand has the inevitable
consequences of prolonging the life of the litigation, especially
where the parties understood the real dispute and have had an
efficacious opportunity to adduce evidence. An unjustified
remand, therefore, cannot be sustained on the ground that the
person feeling aggrieved by the order of remand would have an
opportunity to participate in the proceedings before the trial
Court.
35) The conspectus of aforesaid consideration is that the
impugned judgment and order deserves to be quashed and set
aside and the First Appeal restored to the file of the learned
District Judge for fresh determination in accordance with law.
36) Hence, the following order.
-:ORDER:-
(i) The Appeal stands allowed.
(ii) The impugned judgment and order dated 18
June 2019 passed by the learned District Judge,
Pune, stands quashed and set aside.
(iii) First Appeal No.389 of 2017 stands restored to
the file of the learned District Judge, Pune, for
afresh decision in accordance with law.
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(iv) The learned District Judge, Pune is requested
to decide the appeal as expeditiously as possible
after providing an effective opportunity of hearing
to both the parties without being influenced by
any of the observations hereinabove.
(v) In the circumstances of the case, no order as
to costs.
(vi) In view of the disposal of the Appeal, the
Interim Application does not survive and the
same stands disposed.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 12/01/2024 21:55:13
