Birendra Narang vs Sanjay Dubey
2025 Latest Caselaw 5419 MP

7. Although several grounds have been raised by the appellants, but learned counsel for the appellants has confined his argument to the extent that the appellants should have been granted proper opportunity to defend their case and not providing the same by the trial court is illegal and therefore, the impugned judgment and decree deserves to be set aside and the matter may be directed to be remanded back to the trial court.

8. Learned counsel for the respondent No.1 has opposed the submission made by the learned counsel for the appellants and supported the impugned judgment and decree passed by the court below and further submitted that there cannot be any remand because under the existing circumstances, the case does not fall within the respective provision under which remand can be made.

9. I have heard the learned counsel for the parties and also perused the record. From the rival contention of the learned counsel for the parties, the question emerges to be adjudicated as to whether under the existing circumstances, the case can be remanded back to the trial court to decide the case afresh after granting opportunity to the appellants to complete the cross-examination of respondent No.1 and further allow the appellants to produce their witnesses in support of their defence.

10. I have examined the record of the trial court. From the order sheets dated 21.08.2012 it is clear that the court fixed the next date of the case for 28.09.2012 with an observation that the respondent No.1 would remain present in the Court on the said date so as to get his examination completed and also directed the appellants to remain present before the court to cross- examine the respondent No.1 otherwise it would be presumed that no further examination is required and their right to cross-examine the

respondent No.1 would be closed. The court further directed that if respondent No.1 wants to get any other witness recorded then remaining witnesses shall also be kept present before the court and their examination- in-chief be also kept ready on affidavit under Order 18 Rule 4 of CPC. On 28.09.2012, the respondent No.1 remained present in the court for completing his cross-examination, but appellants moved an application under Order 17 Rule 1 CPC mentioning therein that the counsel had gone to attend the cremation of father of his friend. The said application was opposed and finally the court below closed the right of the appellants to cross-examine the respondent No.1 and directed that on the next date i.e. 21.11.2012, the appellants shall keep their witnesses present in the court. Thereafter, on 06.11.2012, an application for early hearing was moved by the appellants to decide the application moved by them under Section 151 CPC, but the court did not find any urgency in the matter and therefore, the case was taken up on the given date i.e. 21.11.2012, but, because the Presiding Officer was on leave, the case was adjourned. Thereafter, the case was listed on 23.01.2013 and 13.02.2013 and after filing reply by the respondent No.1 to the application under Section 151 CPC, finally, on 06.03.2013, the trial court also rejected the application of appellants filed under Section 151 CPC saying that although the documents were submitted by the appellants alongwith the application, but no sufficient reason is shown to recall the order. Thereafter, request was made by the counsel for the appellants before the trial court that the said order has been assailed in the High Court whereupon the court adjourned the case with a clear understanding that if on the next date any order from the High Court is not produced, the right of the appellants to produce witnesses would be closed

and the case was fixed for 27.06.2013. On 27.06.2013, no order of the High Court was produced by the appellants and an application under Order 17 Rule 1 CPC was filed on the ground that the case is fixed before the High Court, but the trial court did not adjourn the case and closed the right of the appellants to adduce evidence. Although the writ petition filed by the appellants was dismissed for want of prosecution and therefore, the trial court heard the final arguments and passed the impugned judgment and decree.

11. Learned counsel for the respondent No.1 has submitted that although the power is provided to the appellate court to remand the case under Order 41 Rule 23 CPC, but the circumstances under which the remand can be made by the appellate court are not available in the present case and therefore, this Court cannot remand the case to the trial court. He has pointed out that the said provision cannot be applied in the present case and as such remand is not permissible.

12. In view of the aforesaid, it is apt to examine the relevant provision of remand and to ensure whether remand can be made or not. Order 41 Rule 23 CPC provides power to the appellate court to remand the case, which reads 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 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 to all just exceptions, be evidence during the trial after remand."

13. From perusal of the aforesaid provision and considering the submission made by the learned counsel for the parties, it is clear that under the aforesaid provision, order of remand cannot be passed because it is a case in which no additional issue is required to be framed, but it is a case in which the court has closed the right of the appellants to adduce the evidence, even so, at the same time, this Court cannot ignore the provision under which the appellate court is provided with the power to remand the case in the circumstances which are existing in the case at hand. Thus, it is also appropriate to examine the respective provision of Order 41 Rule 25 of CPC.

"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 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]."

The aforesaid provision makes it clear that the appellate court is not powerless. If in the opinion of the appellate court the remand is essential for right decision of the suit upon the merits, it may remand the case. Here in the case at hand, looking to the reason for which the adjournment was sought by the appellants by moving an application under Order 17 Rule 1 CPC and further under Section 151 CPC alongwith the documents so as to establish that there was sufficient reason for not attending the case, the trial court could have adopted a liberal view instead of taking such a harsh decision. The trial court not only closed the right of the appellants to cross- examine the respondent No.1 but also closed their right to adduce evidence. In my opinion, the trial court could have compensated the respondent No.1 by imposing cost upon the appellants or otherwise, but the court has not considered the aspect that such a decision would cause a great prejudice to the appellants and therefore, such decision of the court does not appear to be justified in the fact situation of the present case.

14. The Supreme Court in re C.N. Ramappa Gowda v. C.C. Chandregowda (Dead) by L.Rs. And another reported in (2012) 5 SCC 265 held the decision of the High Court justified whereby the appellate court setting aside the ex parte decree in which the right to file a written statement was closed by the trial court and remanded the matter giving opportunity to the defendants to file written statement and directed the trial court to conduct a do novo trial. In the said case, the Supreme Court observed as under:

"30. As a consequence of the aforesaid analysis and the reasons recorded hereinabove, we are of the view that the High Court was legally justified in setting aside the judgment and decree of the trial

court and allowing the appeal to thelimited extent of remanding the matter to the trial court for a de novo trial after permitting the respondent- defendant to file the written statement. The appeal consequently stands dismissed. However, we are conscious of the fact that the appellant-plaintiff for no fault on his part has been forced to entangle himself in the appeal before the High Court as the respondent giving rise to an appeal before this Court, although the respondent-defendant had leisurely failed to file the written statement in spite of numerous opportunities to file the same and also had failed to cross-examine the plaintiff witnesses, but once the decree for partition of half-share ws passed in favour of the appellant-plaintiff, the respondent-defendant promptly challenged the same by filing an appeal before the High Court."

Further, in re Shiv Kumar and others vs. Sharanabasappa and others reported in (2021) 11 SCC 277 the Supreme Court has also considered the scope of remand by the appellate court and observed as under:-

"26.4.1. The decision cited by the learned counsel for the appellants in Mohan Kumar [Mohan Kumar v. State of M.P., (2017) 4 SCC 92 : (2017) 2 SCC (Civ) 368] is an apt illustration as to when the appellate court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The trial court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the trial court was not challenged by the

defendants but as against the part of the decision of the trial court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed [Mohan Kumar v. State of M.P., FA No. 3 of 1998, order dated 24-1-2005 (MP)] the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the appellant-plaintiff had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to nonexamination of his vendor, the proper course for the High Court was to remand the case to the trial court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for retrial was made out particularly when the trial court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case."

The Bombay High Court in Rauf Baig vs. Sumanbai @ Rukhmanbai Kachru Jadhav & others decided on 21st November, 2024 relying upon the decision of the Supreme Court rendered in the case of Shivkumar (supra) observed as under:-

"8. Bearing in mind principles of law as espoused by the Supreme Court, if facts and circumstances of the present case are examined, it is clear that the defendants had caused appearance before the trial court through an advocate and filed written statement. Issues were framed and evidence of the plaintiff's witnesses was recorded. Since defendants' advocate failed to cross-examine the plaintiff's witnesses, "No Cross" order was passed. Even the defendants failed to lead their evidence. Consequently, based on the evidence recorded on behalf of the plaintiff, trial court proceeded to pass the decree. The memo of appeal filed on behalf of defendants before first appellate Court, nowhere stipulate the reason as to why plaintiff's witnesses were not examined or defendants have not lead evidence. One line allegation that the advocate has not communicated progress of the matter would not be sufficient. Only by {8} A.O. 2.24 R.odt putting blame on advocate, a party cannot take benefit to overcome his own fault or negligence in attending court proceeding. Record shows that plaintiff instituted suit in the year 2013 and same has been disposed of in the year 2015. Pertinently, the decree passed by the trial court has been executed in the year 2015 itself and respondent had not taken any steps till 2018. Though, delay in filing the appeal was condoned, fact remains that the defendants were not diligent or grossly negligent in defending litigation.

9. The observations in impugned judgment, indicate that no reasons are recorded for adopting recourse of remand of suit. The appellate court merely observes that since it is a civil dispute pertaining to property rights, an opportunity needs to be given to defendants to cross examine plaintiff's witnesses or lead their evidence. However, the appellate court nowhere recorded any finding as to what precluded the defendants from availing opportunity to cross-examine plaintiff's witnesses or adduce their own evidence before the trial court. If defendants were negligent in defending the case and once they failed to avail opportunity made available to them as per law, in absence of reasons for such default, casual order of

remand cannot be permitted. It is trite that a party cannot be permitted to fill up the lacuna or order of remand is not to be passed merely for allowing the party to fill up the lacuna in its case. In that view of the matter, it was necessary on the part of the appellate court to consider and decide the appeal, on the basis of evidence already tendered into service before the trial court and record finding on re-appreciation of the material already on record, as a last fact finding court."

15. As per the Bombay High Court, the remand can be made, but the Court is under obligation to assign the reasons for remand. In my opinion, the submission made by the learned counsel for the respondent No.1 that in the present case remand can be made by the appellate court only under the circumstances as prescribed under Order 41 Rule 23 CPC is not proper and acceptable, because, in view of the circumstances existing in the present case, the remand can be made as provided under Order 41 Rule 25 CPC and as such, in my opinion, it is a fit case where the remand can be made because from the order of the trial Court it is clear that the appellants did not get proper opportunity to cross-examine and to lead their evidence in support of their defence. The order passed by the court below, in my opinion, is harsh and caused great prejudice to the appellants and the judgment and decree passed by the court below is otherwise cannot be considered to be passed on merit. It is also evidently clear from the decree sought by the respondent No.1 that he had not asked the court for refund of the amount paid, but still the said decree was granted by the court below without ascertaining the actual amount paid by the respondent No.1 to the appellants. Therefore, according to me, the impugned judgment in the existing circumstances is not sustainable in the eyes of law.

16. In the result, First Appeal No. 807/2017 is allowed. The impugned judgment and decree dated 28.07.2017 (later corrected vide orders dated 28.08.2017 and 22.09.2017) passed in Civil Suit No. 117-A/2010 is hereby set aside.

17. The matter is remanded back to the trial court with a direction to grant an opportunity to the appellants to cross-examine the respondent No.1 and his witnesses and also to lead their evidence. It is further directed that the appellants shall not take any adjournment and shall not avoid any hearing without any justifiable reason. The trial court is also directed to conclude the trial and decide the suit treating it to be a special case as the suit is of 2010 and the matter is being remanded back to the trial court for further hearing and to pass a fresh order on merit.

18. The First Appeal No. 807/2017 is accordingly allowed to the above extent.

19. Consequent upon allowing the First Appeal No. 807/2017 and setting aside the impugned judgment and decree, nothing requires to be adjudicated in First Appeal No. 1210/2017 and it has become infructuous and it is dismissed accordingly.

20. Looking to the facts and circumstances of the case, there shall be no order as to costs.

(SANJAY DWIVEDI) JUDGE Reghvendra RAGHVEN Digitally signed by RAGHVENDRA SHARAN SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,

DRA 2.5.4.20=0b4ca33e82678112c8b8779ae 1f77dd53c66b97e56d85ed6193d6ff614 e6a268, ou=HIGH COURT OF MADHYA PRADESH,CID - 7004934,

SHARAN postalCode=482001, st=Madhya Pradesh, serialNumber=83fe7b9f6d64cc4bb81c8 f9439fc48480b0a775065e61ccf27fd2c8

SHUKLA 9984a1b74, cn=RAGHVENDRA SHARAN SHUKLA Date: 2025.03.13 11:37:49 +05'30'