Jharkhand High Court
Krishna Nandan Prasad Sinha vs Bikram Singh on 28 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 582 of 2015
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1. Krishna Nandan Prasad Sinha
2. Navin Kumar Sinha
3. Anil Kumar Sinha
4. Sunil Kumar Sinha
5. Purnima Srivastava
6. Nutan Lal ... Appellants
-versus-
1. Bikram Singh
2. Bishwanath Pandey
3. Gyan Singh ... Respondents
----
WITH
M.A. No. 59 of 2016
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1. Bishwanath Pandey
2. Gyan Singh ... Appellants
-versus-
1. Hemlata Sinha
2. Bikram Singh ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellants: Mr. Amit Kumar Das, Advocate
Ms. Swati Shalini, Advocate
[in M.A. No.582 of 2015]
Mr. P.A.S. Pati, Advocate
[in M.A. No.59 of 2016]
For the Respondents: Mr. P.A.S. Pati, Advocate
[in M.A. No.582 of 2015]
Mr. Amit Kumar Das, Advocate
Ms. Swati Shalini, Advocate
[in M.A. No.59 of 2016]
----
12/ 28.02.2022 Heard learned counsel for the parties. Both the parties agreed for
disposal of these appeals at this stage itself.
2. A very short point is involved in this appeal. Point, which both the
parties have raised is, whether First Appellate Court could have set aside the
judgment dated 31.01.2012 (decree dated 09.02.20212) passed by the Civil
Judge (Junior Division), Jamshedpur, East Singhbhum, in Title Suit No.25 of
1998 and remanded the case back to the Trial Court to decide the suit afresh
by framing additional four issues, which has been framed by the First
Appellate Court.
3. Counsel for both the parties submit that on the fact of the case,
remand was under Order XLI Rule 25 of the Code of Civil Procedure, thus,
appeal should have been retained by the Appellate Court and the Trial Court
should have been directed only to record evidence on the issues drawn by the
First Appellate Court and return the same after such recording and it was the
duty of the First appellate Court to decide the issues in the appeal itself.
4. Counsel appearing on behalf of the parties rely upon a judgment
of the Supreme Court in the case of J. Balaji Singh versus Diwakar Cole
and Others reported in (2017) 14 SCC 207.
5. Title Suit No.25 of 1998 was preferred by the appellant of M.A.
No.582 of 2015 and respondents of M.A. No.59 of 2016. Suit was dismissed
on contest after hearing the parties. Trial Court framed seven issues, which
was decided by the Trial Court. Aggrieved by the aforesaid judgment dated
31.01.2012, the plaintiff preferred Title Appeal No.34 of 2012. The First
Appellate Court, after hearing the parties, felt that for better adjudication of the
dispute, four issues should have been framed by the Trial Court and after
deciding those issues, also the suit could have been properly adjudicated. Trial
Court, thus, framed four additional issues, which are as follows: -
I. Whether the defendant No.1 has right, title over the
suit property for which he made an agreement for
sale with the plaintiff on 18.05.1995.
II. Whether on 18.05.1995 the date of agreement for the
sale with the plaintiff regarding the suit property
defendant no.1 has right to made an agreement for
sale of the suit property or not?
III. Whether the agreement for sale of suit property by
the defendant no.1 with the plaintiff of dated
18.05.1995 lawfully enforceable or not?
IV. Whether the suit is suffered for non joinder of
necessary parties or not?
6. After framing the said issues, the First Appellate Court, vide the
impugned judgment, set aside the judgment of the Trial Court and directed the
Trial Court to decide the suit afresh. This judgment of remand is under
challenge by both the appellant and the respondents.
7. After hearing the parties, I find that the First Appellate Court was
of the opinion that four additional issues needs to be framed and decided, to
reach to a reasonable and proper conclusion in the suit, thus, remanded the
case after setting aside the judgment of the Trial Court.
8. This Court is of the opinion that the case would fall under Order
XLI Rule 25 of the Code of Civil Procedure. The Hon'ble Supreme Court in the
case of J. Balaji Singh (supra) in paragraph 14 has held as under:-
14. There are three provisions in the Code which
deal with the power of the appellate court to
remand the case to the trial court. These
provisions are Order 41 Rules 23, 23-A and 25:
14.1 So far as Order 41 Rule 23 is concerned, it
enables the appellate court to remand the case to
the trial court when it finds that the trial court has
disposed of the suit upon a preliminary point.
The appellate court in such cases is empowered
to direct the trial court to decide all the issues on
evidence on record.
14.2 So far as Rule 23-A is concerned, it enables
the appellate court to remand the case to the trial
court when it finds that though the trial court has
disposed of the suit on all the issues but on
reversal of the decree in appeal, a retrial is
considered necessary by the appellate court.
14.3 So far as Rule 25 is concerned, it enables
the appellate court to frame or try the issue if it
finds that it is essential to the right decision of
the suit and was not framed by the trial court.
The appellate court in such case may,
accordingly, frame the issues and refer the same
to the trial court to take the evidence and record
the findings on such issues and return to the
appellate court for deciding the appeal. In such
cases, the appellate court retains the appeal to
itself.
9. So far as Rule 25 of Order XLI of the Code of Civil Procedure is
concerned, the provision allows the appellate court to frame or try additional
issues if the Court finds that it is essential for a right decision of the suit. In the
instant case, First Appellate Court felt that it was necessary to frame and try
additional issues for just and proper decision. This is well within the jurisdiction
of the First Appellate Court. But, in the instant case, the First Appellate Court,
after framing the issues, had set aside the judgment and remanded the case to
the Trial Court for fresh trial. This is not the proper procedure to adopt. In this
case, where the First Appellate Court feels that some issues needs to be
framed and answered, proper course would be to frame the issues and send
the file to the Trial Court only for the purpose of recording evidence. After such
evidence is recorded by the Trial Court, the Trial Court should return the file to
Appellate Court with the recordings for deciding the appeal itself, considering
all the issues including newly framed issues. In these type of cases, the
Appellate Court retains the appeal itself.
10. On the facts of this case and law, the Appellate Court should have
retained the appeal and directed the Trial Court to record the findings, if
necessary, after taking fresh evidence and return the file to the Appellate
Court. Thus, the procedure, which has been adopted by the First Appellate
Court was not proper and not in accordance with Order XLI Rule 25 of the
Code of Civil Procedure. I, thus, set aside the judgment dated 27th August,
2015 passed by the District Judge V, East Singhbhum, Jamshedpur in Title
Appeal No.34 of 2012. The First Appellate Court, i.e., the District Judge V,
East Singhbhum, Jamshedpur is directed to send the record to the Trial Court
only for the limited purpose of taking evidence on the new issues framed.
Once the evidence is recorded, the file should be returned to the First
Appellate Court, who will decide the case on merits, considering the evidence,
which has been led by the parties. With the aforesaid observation and
direction, these appeals are allowed.
11. Since the main appeals have already been allowed, I.A. 6563 of
2021 in M.A. No.582 of 2015 also stands disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
