Babu Lal vs Pawan Kumar & Ors
2023 Latest Caselaw 15134 P&H

                                                    Neutral Citation No:=2023:PHHC:116591




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        In the High Court of Punjab and Haryana, at Chandigarh


                               Second Appeal Order No. 53 of 2016 (O&M)

                                                  Date of Decision: 05.09.2023


Babu Lal
                                                                    ... Appellant(s)

                                         Versus

Pawan Kumar and Others
                                                                 ... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:     Mr. Hemant Sarin, Advocate
             for the appellant(s).

             Mr. Mukul Aggarwal, Advocate
             for the respondent No.1.

Anil Kshetarpal, J.

1. This is the plaintiff's appeal against the order passed by the

First Appellate Court while remanding the case back to the trial Court for de

novo trial of the case.

2. In order to comprehend the issue involved in the present

litigation, the relevant facts, in brief, are required to be noticed. The

appellant (plaintiff before the trial Court) filed a suit for specific

performance of the agreement to sell with a consequential relief of

permanent injunction. He claims to be in possession of the suit land for the

last 20 years. The suit was filed on the premise that the defendant No.1 for

himself as well as the power of attorney holder of the remaining defendants

entered into an agreement to sell with respect to the land measuring 27

kanals and 8 marlas on receipt of the earnest money of ₹11,40,000/- on

01.03.1998. Thereafter, the defendant No.1, on 07.03.2005, received an 1 of 8

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additional payment of ₹8,30,000/- and the date for execution of the sale deed

was extended upto 25.03.2005. In the month of September, 2005, a suit for

specific performance was filed. The defendant No.1 entered appearance and

filed the written statement for himself as well as the general power of

attorney for the other defendants, admitting the claim of the plaintiff while

praying for decreeing the suit. The statement of the defendant No.1 on oath

was recorded to the same effect. An application under Order I Rule 10 of the

Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") was filed

by certain persons including Yogesh etc. while alleging that the property

belongs to the Trust. The defendant No.1 filed an application under Order

VII Rule 4 and 6 CPC for permission to withdraw the written statement. On

28.11.2009, both the applications, namely, the application under Order I

Rule 10 CPC as well the application filed by the defendant No.1 under Order

XII Rule 4 and 6 CPC were dismissed. Thereafter, the trial Court framed the

issues and permitted the parties to lead their respective evidence. The

plaintiff lead his evidence, whereas, the defendants did not lead any

evidence. The trial Court partly decreed the suit while ordering the

defendant No.1 to refund the amount of ₹8,30,000/- along with interest @

9% per annum. Only, the plaintiff filed an appeal. During the pendency of

the appeal, the plaintiff filed an application for permission to lead additional

evidence. The defendant No.4 filed an application for permission to file the

written statement and lead evidence. The First Appellate Court has remanded

the matter back to the trial Court for deciding it afresh while recording the

following reasons:-

i) The trial Court decided the suit in haste, as an application

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for permission to lead additional evidence was decided

on 31.08.2010, but the trial Court did not grant sufficient

time to the parties to file the revision petition before the

higher Court.

ii) The trial Court has referred to the trust deed No. 947

dated 03.09.1996, though it was never tendered into

evidence.

iii) The trial Court permitted the defendant No.1 to file the

written statement on his own behalf as well as on behalf

of all the remaining defendants No.2 to 17, though, no

copy of the power of attorney of the remaining

defendants was filed.

iv) The trial Court has not framed the issue with regard to

the fact that some part of the property, in fact, belongs to

the Trust.

3. Heard the learned counsel representing the parties at length and

with their able assistance, perused the paper-book.

4. The learned counsel representing the appellant submits that the

First Appellate Court was erroneous in setting aside the judgment of the trial

Court without examining the same on merits. He submits that the application

for permission to lead additional evidence filed by the appellant as well as

the written statement filed by the defendant No.4 shall have been examined

by the First Appellate Court and if required, the Court shall have permitted

the parties to lead evidence. The learned counsel further submits that the

enabling power of the First Appellate Court to remand the case back to the

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trial Court is regulated by Order XLI Rule 23A CPC which does not permit

the First Appellate Court to remand the matter back to the trial Court, unless

the decree of the trial Court is reversed in appeal and retrial, is considered

necessary. The learned counsel also relies upon the judgment of the Supreme

Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2

SCC 686 and Municipal Corporation, Hyderabad v. Sunder Singh (2008)8

SCC 485.

5. On the other hand, the learned counsel representing the

respondent No.1 relies upon the judgment passed by the Supreme Court in

J.Balaji Singh v. Diwakar Cole and Others (2017) 14 SCC 207.

6. In fact, the scope of Section 107 read with Order XLI Rule 23,

23A and 25 CPC has been explained by the Supreme Court in

P.Purushottam Reddy's case (supra) in the following manner:-

"10. The next question to be examined is the legality and

propriety of the order of remand made by the High Court. Prior

to the insertion of Rule 23A in Order 41 of the Code of Civil

Procedure by CPC Amendment Act 1976, there were only two

provisions contemplating remand by a court of appeal in Order

41 of CPC. Rule 23 applies when the trial court disposes of the

entire suit by recording its findings on a preliminary issue

without deciding other issues and the finding on preliminary

issue is reversed in appeal. Rule 25 applies when the appellate

court notices an omission on the part of the trial court to frame

or try any issue or to determine any question of fact which in

the opinion of the appellate court was essential to the right

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decision of the suit upon the merits. However, the remand

contemplated by Rule 25 is a limited remand in as much as the

subordinate court can try only such issues as are referred to it

for trial and having done so the evidence recorded together

with findings and reasons therefore of the trial court, are

required to be returned to the appellate court. However, still it

was a settled position of law before 1976 Amendment that the

court, in an appropriate case could exercise its inherent

jurisdiction under Section 151 of the CPC to order a remand it

such a remand was considered pre-eminently necessary ex

debito justitiae, though not covered by any specific provision of

Order 11 of the CPC. In cases where additional evidence is

required to be taken in the event of any one of the clause of

Sub-rule (1) of Rule 27 being attracted such additional

evidence oral or documentary, is allowed to be produced either

before the appellate court itself or by directing any court

subordinate to the appellate court to receive such evidence and

send it to the appellate court. In 1976, Rule 23A has been

inserted in Order 41 which provides for a remand by an

appellate court hearing an appeal against a decree if (i) the

trial court disposed of the case otherwise than on a preliminary

point, and (ii) the decree is reversed in appeal and a retrial is

considered necessary. On twin conditions being satisfied, the

appellate court can exercise the same power of remand under

Rule 23A as it is under Rule 23. After the amendment all the

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cases of wholesale remand are covered by Rule 23 and 23A. In

view of the express provisions of these rules, the High Court

cannot have recourse to its inherent powers to make a remand

because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p.

399), it is well settled that inherent powers can be availed of ex

debito justitiae only in the absence of express provisions in the

Code. It is only in exceptional cases where the court may now

exercise the power of remand de hors the Rules 23 and 23A. To

wit the superior court, if it finds that the judgment under appeal

has not disposed of the case satisfactorily in the manner

required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC

and hence it is no judgment in the eye of law, it may set aside

the same and send the matter back for re-writing the judgment

so as to protect valuable rights of the parties. An appellate

court should be circumspect in ordering a remand when the

case is not covered either by Rule 23 or Rule 23A or Rule 25 of

the CPC. An unwarranted order of remand gives the litigation

an undeserved lease of life and, therefore must be avoided."

7. On the other hand, the judgment passed in J.Balaji Singh's

(supra) has been decided on the peculiar facts of the case. The Supreme

Court, after considering that an application under Order XLI Rule 27 CPC

has been allowed by the First Appellate Court held that the order passed by

the High Court to remand the case back to the trial Court was justified. In

J.Balaji Singh's case (supra), the attention of the Bench was not drawn to

the judgment passed by the Supreme Court in P.Purushottam Reddy's case

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(supra).

8. In this case, the suit was filed before the trial Court in the

month of September, 2005, which was decided after a period of five years.

Thereafter, the defendants never filed any appeal. The appeal was only filed

by the plaintiff. An application for leading additional evidence was also filed

by the plaintiff. The defendant No.4 did not appear before the trial Court,

though, he filed an application for permission to file the written statement.

The First Appellate Court could have decided the matter itself. The First

Appellate Court was also wrong in observing that after dismissing the

application for leading additional evidence, the Court should have granted an

opportunity to the parties to file the revision petition before the higher Court.

There is no such procedure prescribed in the law. The second reason

assigned by the First Appellate Court with regard to the argument that the

part of the property is a Trust property, it shall be noticed that the Appellate

Court itself shall have examined the matter.

9. The First Appellate Court can also frame an additional issue, if

required. It also had the power to examine the written statement filed by the

defendant No.4.

10. Keeping in view the aforesaid facts, the order passed by the

First Appellate Court is not sustainable. Hence, the present appeal is allowed

and the impugned order is set aside. The case is remanded back to the First

Appellate Court to decide the appeal in accordance with law. The parties,

through their learned counsel, are directed to appear before the First

Appellate Court on 05.10.2023.

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11. The miscellaneous application(s) pending, if any, shall stand

disposed of.

(Anil Kshetarpal) Judge September 05, 2023 "DK"

Whether speaking/reasoned :Yes/No Whether reportable : Yes/No

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