Calcutta High Court (Appellete Side)
Sk. Kamaluddin vs Rowsonara @ Rouson Ara Khatun on 25 April, 2022
25.04.2022
SL No.5
Court No.8
(gc)
FMA 1243 of 2021
With
CAN 1 of 2018
(Old No: CAN 5721 of 2018)
Sk. Kamaluddin
Vs.
Rowsonara @ Rouson Ara Khatun
Mr. Avishek Prasad,
Ms. Sreetama Neogi,
....for the Appellant.
In spite of service, the respondent is not
represented nor any accommodation is prayed for. In
view of the earlier order, we proposed to hear out the
appeal at the admission stage.
The appeal is arising out of judgment and decree
dated 31st August, 2017 passed by the learned
Additional District Judge, 1st Court, Suri, Birbhum in
Money Appeal No.6 of 2014. The learned First Appellate
Court allowed the appeal by remanding the same to the
learned Civil Judge (Senior Division), Suri, Birbhum
with a direction to write a fresh judgment after giving
opportunity to both sides to make their submissions.
The learned Trial Judge was directed to decide the
matter afresh after taking into consideration the
observation made by the Appellate Court but not to be
influenced at the time of writing the judgment.
The appeal was arising out of a money decree. The
reason for the remand in the words of the learned First
Appellate Court for the "restricted remand" appears to
be that the Trial Court could not reconcile the two
alleged promissory notes dated 24th October, 1997 and
3rd December, 1999 and there has been a
misappreciation of evidence and misreading of certain
documents. The learned First Appellate Court was of
the view that the learned Trial Court did not take into
consideration the Exhibit-1 in its proper perspective
and unusual gap between the execution of the alleged
document and the evidence by Rausonara Khatun. The
First Appellate Court was of the view that the Trial
Court fails to appreciate those relevant factors in proper
perspective for ascertaining validity and genuineness of
those two documents, which are the principal
documents for the money suit. The learned First
Appellate Court referred to Section 2(5) of the Stamp Act
and a Full Bench decision of Madras High Court in ILR
13, Mad. 147(FB) where observations have been made
that an instrument which contains a promise to pay on
demand a certain sum of money with interest and which
bears the signature of the writer and of some other
witnesses, is a bond and should be stamped as such.
The learned Counsel appearing on behalf of the
appellant has submitted that the Appellate Court had
exceeded its jurisdiction in remanding the matter to the
Trial Court as all the evidences were available with the
Appellate Court and there is no issue which is required
to be considered by the Trial Court on the basis of
which the final decision is required to be taken in the
instant case.
The matter before us is not covered by Order 41
Rule 23 of the Code of Civil Procedure. The learned
Trial Court did not dispose of the suit on a preliminary
point. The Trial Court disposed of the suit on merits.
All points were taken into consideration by the Trial
Court in deciding the lis between the parties. The Trial
Court may have decided the matter rightly or wrongly, it
is the duty of the Appellate Court to decide the matter
on merits. The order of remand cannot be passed
mechanically, more so, when all the facts and findings
are available before the Appellate Court on the basis of
which the Appellate Court is capable of deciding the lis
between the parties. The Appellate Court may remand
the matter 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 suit upon the merits. It was on such
consideration, 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 the Trial Court may be allowed to take additional
evidence, if required. In the instant case, the First
Appellate Court did not frame any issue for remand by
the Trial Court. Moreover, having regard to the fact that
all the issues have been decided by the Trial Court to
the best of the ability of the Trial Court, we do not find
any issue or any question of fact which are required to
be decided by the Trial Court on remand. The Appellate
Court also did not frame any issue and refer such
issues for Trial to the Court from whose decree the
appeal was carried to the First Appellate Court. The
order of remand has to be carefully worded so that the
Trial Court precisely knows the issues, the Trial Court
would be required to re-adjudicate or adjudicate.
In a recent judgment, the Hon'ble Supreme Court in
Nadakerappa Since Deceased by LRS. & Ors. Vs.
Pillamma Since Deceased by LRS. & Ors. decided
on 31st March, 2022 (Civil Appeal Nos.7657-7658 of
2017) has clearly stated that an order of remand cannot
be passed as a matter of course. An order of remand
cannot also be passed for the mere purpose of
remanding a proceeding to the lower court. An
endeavour has to be made by the Appellate Court to
dispose of the case on merits and more so, when both
the sides have led oral and documentary evidence, the
Appellate Court has to decide the appeal on merits
instead of remanding the case to the lower court. The
relevant observations are in Paragraph 25, which state:-
"25. The Division Bench, without assigning
any cogent reasons, has set aside the order of the
learned Single Judge and has remanded the matter
to the Land Tribunal. It is settled law that the order
of remand cannot be passed as a matter of course.
An order of remand cannot also be passed for the
mere purpose of remanding a proceeding to the lower
court or the Tribunal. An endeavour has to be made
by the Appellate Court to dispose of the case on
merits. Where both the sides have led oral and
documentary evidence, the Appellate Court has to
decide the appeal on merits instead of remanding the
case to the lower court or the Tribunal. We are of the
view that, in the instant case, the Division Bench has
remanded the matter without any justification."
On such consideration, we do not find any reason
for the learned First Appellate Court for "restricted
remand" to the learned Trial Court for writing a fresh
judgment. On the basis of evidence, it was open for the
Appellate Court to form its own opinion.
On such consideration, we allow this appeal.
The order of remand is set aside.
The Appellate Court is directed to rehear the appeal
and write a fresh judgment on the basis of the materials
on record.
Accordingly, the appeal being FMA 1243 of 2021
and the application being CAN 1 of 2018 (Old No: CAN
5721 of 2018) stand disposed of.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this order, if
applied for, be given to the parties on usual
undertaking.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
