Delhi High Court
Hawa Singh vs Union Of India & Ors on 2 September, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 208/2016
HAWA SINGH ..... Appellant
Through: Mr. Arun Sharma and Mr. Sidharth
Sejwal, Advocates.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Dr. Ashwani Bhardwaj, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 02.09.2016
1. On 8.8.2016 when notice was issued in this second appeal the
following order was passed:-
"C.M. Appl. No. 28319/2016 (for condonation of delay of 142 days in
re-filing the appeal, under Section 151 CPC)
This is an application seeking condonation of delay of 142 days in
re-filing the appeal.
For the reasons stated in the application, the same is allowed and the
delay is condoned.
The application stands disposed of.
C.M. Appl. No. 28318/2016 (Under Order 22 Rule 3 CPC, on behalf of
LRs of deceased - Hawa Singh for taking them on record)
This application is actually unnecessary because applicants being the
legal representatives of the original plaintiff can sue in their own right
because the right to sue survives and the plaintiff did not die during the
pendency of judicial proceedings but died after passing of the impugned
judgment.
C.M. stands disposed of by observing that the applicants would be
entitled to represent the erstwhile plaintiff.
RSA 208/2016 page 1 of 5
RSA 208/2016 and C.M. Appl. No. 28316/2016 (for stay, under Section
151 CPC)
1. Counsel for the appellants argues that in view of order 41 Rule 24
CPC the First Appellate Court could not have remanded the first appeal but
ought to have decided the first appeal on merits as the record of the trial
court was complete. It is also argued that there was no need for additional
evidence to prove the orders of the departmental authorities because the
said documents were admitted documents and could always be referred to
by the first appellate court itself.
2. Let notice be issued to the respondents, on filing of process fee, both
in the ordinary method as well as by registered post AD, returnable on 2nd
September, 2016.
3. Trial court in the meanwhile will not proceed ahead with the
disposal of the suit bearing No. 1338/06/93 titled as Hawa Singh Vs. Union
of India and Ors. [New CS(OS) No. 25/2015].
4. A copy of this order be given dasti."
2. I have pointed out to counsel for the respondents the recent
judgment of the Supreme Court in the case of Lisamma Antony and
Another Vs. Karthiyayani and Another (2015) 11 SCC 782 which holds
that appellate courts cannot remand the matters except under Order 41 Rule
23 CPC where suit is decided only on a preliminary issue ie all issues are not
decided or under Order 43 Rule 23 A CPC when a re-trial/additional
evidence is necessary, and, if record of the trial court is otherwise complete
it is the appellate court which must decide the matters on merits and not
remand the matters to the court below. The relevant paras of the judgment
RSA 208/2016 page 2 of 5
of the Supreme Court in the case of Lisamma Antony and Another (supra)
read as under:-
"14. Rule 23 of Order 41 of Code of Civil Procedure, 1908, (for short "the
Code") provides that 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 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.
15. Rule 23A of Order 41 of the Code provides that 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.
16. Rule 24 of Order 41 of the Code further provides that where evidence
on record is sufficient, appellate court may determine case finally, instead
of remanding the same to the lower court.
17. Needless to say, in the present case, the suit was not disposed of on any
preliminary issue by the trial court. The second appellate court should have
restrained itself from remanding a case to the trial court. Remanding a case
for re-appreciation of evidence and fresh decision in the matter like the
present one is nothing but harassment of the litigant. The unnecessary
delay in final disposal of a lis, shakes the faith of litigants in the court."
3. It is seen that in the present case on behalf of the appellant
challenge is laid to the impugned judgment of the first appellate court which
remands the matter to the trial court for fresh decision although the trial
RSA 208/2016 page 3 of 5
court did not by its judgment limit its decision in the suit only on
preliminary issues and nor has the first appellate court required or directed
leading of additional evidence. Therefore, in view of Order 41 Rule 24 CPC
read with the ratio of the recent judgment of the Supreme Court in the case
of Lisamma Antony and Another (supra), it is the first appellate court
which has to decide the appeal on merits as per record of the trial court.
4. It is the respondents herein who had filed the first appeal before
the first appellate court, and therefore, it is this first appeal which will have
to be decided now by the first appellate court after hearing arguments of
both the parties and as per the record of the trial court. The judgment now
be passed by the first appellate court will be uninfluenced by any of the
observations made in the impugned judgment of the first appellate court
dated 17.11.2015.
5. The appeal is accordingly disposed of by remanding the matter
to the first appellate court to decide the same on merits. Parties to appear
before the District and Sessions Judge, Central, Tis Hazari Courts, Delhi on
RSA 208/2016 page 4 of 5
18.10.2016 and the District and Sessions Judge will mark the appeal for
decision to a competent court in accordance with law.
VALMIKI J. MEHTA, J
SEPTEMBER 02, 2016
ib
RSA 208/2016 page 5 of 5
