Delhi High Court
Ms. Prem Lata Sagar vs Financial Commissioner Of Delhi & ... on 10 August, 2009
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3640/1999 & CM Mo.7351/2009
Date of decision : 10.08.2009
IN THE MATTER OF :
#MS. PREM LATA SAGAR ... Petitioner
! Through :Mr. V.P. Singh, Sr. Adv. with
Mr. D.R. Bhatia, Adv.
versus
$ FINANCIAL COMMISSIONER OF DELHI & ORS. ..... Respondents
^ Through : Ms. Sujata Kashyap, Adv.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
By way of the present writ petition, the petitioner has impugned
the order dated 17.5.1999 passed by the Financial Commissioner, Delhi in a
matter entitled Gaon Sabha Ghitorni vs. Mrs. Prem Lata Sagar.
2. By the impugned order dated 17.5.1999, the revision petition
filed by the Gaon Sabha, respondent No.1 herein, against the order dated
27.8.1998 passed by the Deputy Commissioner (South West), Delhi
(Annexure P-8), setting aside the vesting order of the Revenue Assistant
dated 30.7.1998 (Annexure P-7) in case No.36/RA/97, was disposed of by
the Financial Commissioner, who remanded the case to the Revenue
Assistant, for fresh determination on facts/merits without touching the
merits of the case.
3. Learned counsel for the petitioner submits that the impugned
order, remanding the case back to the Revenue Assistant, is liable to be set
aside as the said order is contrary to the provisions of Order 41 Rules 23 and
23A of the CPC. In support of the aforesaid submission, reliance is placed
on a judgment of the Supreme Court entitled Municipal Corporation,
Hyderabad vs. Sunder Singh, reported as (2008) 8 SCC 485. Order 41
Rule 23 CPC deals with remand of case by Appellate Authority and the Rule
23A deals with remand in other cases. The said provisions are reproduced
herein below for ready reference:
"O-XLI, R-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 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 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 re-trial is considered
necessary, the Appellate Court shall have the
same powers as it has under Rule 23."
4. As is apparent from a perusal of the aforesaid provisions, it is
only where the Court from whose decree an appeal is preferred, disposes of
the suit upon a preliminary point and the appellate court, if it thinks
appropriate, remands the case, that it may further direct as to the nature of
issue/issues which should be tried in the remanded case.
5. Order 41 Rule 23A CPC comes into play in a situation where the
Court from whose decree an appeal is preferred, disposes of the case on
merits, and the decree is reversed in appeal and a re-trial is considered
necessary. In such circumstances, the Appellate Court has the same
powers, as it has under Rule 23.
6. Admittedly, the present case is not one which was disposed of on
a preliminary point; nor did the Financial Commissioner reverse the decree
in appeal. Instead, a simplicitor remand order was passed without
specifying the nature of issue/issues which were required to be tried in the
case so remanded. In the case of Sunder Singh (supra) also, the Supreme
Court observed that the scope of remand in terms of the Order 41 Rule 23
CPC, is extremely limited and in the given facts of the aforesaid case, it was
held that the provisions of Order 41 Rule 23A CPC were not attracted, and
nor was a case made out for invoking the jurisdiction of Order 41 Rule 23
CPC. The observation of the Supreme Court with regard to the provisions of
Order 41 Rule 23 CPC are reproduced herein below :
"18. It is now well settled that before invoking
the said provisions, 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 41 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."
7. A perusal of the impugned order dated 17.5.1999 shows that the
Financial Commissioner had, while remanding the appeal, overlooked the
fact that the order passed by the Deputy Commissioner was not one decided
upon a preliminary point, but was a detailed one, on merits. In these
circumstances, the provisions of Order 41 Rule 23 CPC are not attracted.
The Financial Commissioner also did not make any observation to the effect
that a re-trial was necessary in the present case, so as to attract the
provisions of Order 41 Rule 23A CPC. Hence, the impugned order suffers
from a lacuna, as it does not conform to the provisions of Order 41, Rules 23
and 23A CPC.
8. In these circumstances, the impugned order dated 17.5.1999 is
quashed. The Appellate Authority is directed to dispose of the revision
petition of respondent No. 1 by passing an order on merits. The parties are
directed to appear before the Financial Commissioner on 8th September,
2009, to enable him to fix a date of hearing in the matter.
9. Considering the fact that the petitioner has placed on record
certain additional facts by filing an affidavit under index dated 12.3.2009,
she shall be entitled to rely upon the aforesaid documents by placing them
on the record, for the consideration of the Financial Commissioner, at the
time of hearing the appeal. The respondent shall also be entitled to rebut
the aforesaid documents and place on record any other relevant documents
that they seek to rely upon before the learned Financial Commissioner.
10. Till the parties appear before the Financial Commissioner and a
hearing is granted to them, the order dated 9.6.1999, by which the parties
were directed to maintain status quo in respect of the possession and title of
the impugned property, shall continue to operate.
11. The writ petition is disposed of along with the pending
application.
HIMA KOHLI,J
AUGUST 10, 2009
sk
