Punjab-Haryana High Court
Rajinder Kumar vs Lalit Mohan Rajprohat And Others on 5 August, 2024
Neutral Citation No:=2024:PHHC:099555
SAO No.9 of 2017 (O&M) 2024:PHHC:099555
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on : August 02, 2024
Date of Decision : August 05, 2024
SAO No.9 of 2017 (O&M)
Rajinder Kumar ... Appellant
Versus
Lalit Mohan Rajprohat and others ...Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Mandeep Singh Sachdev, Advocate for the appellant.
Mr. Nippun Sharma, Advocate for
Mr. Parshant Sareen, Advocate for respondent No.1.
Service of respondent Nos.2 and 3 already dispensed with
vide order dated 11.01.2019.
DEEPAK GUPTA, J.
Defendant No.3 of the Civil Suit No.543 of 2009 +tled as "Lalit
Mohan Rajprohat v. Dushyant Bansal and others", dismissed on 17.01.2011
by the Court of learned Addl. Civil Judge (Sr. Divn.), Jalandhar, is before this
Court. He is aggrieved by the order dated 15.11.2016 passed by learned Addl.
District Judge, Jalandhar, remanding the appeal (CA bearing CNR N: PBJL01-
011051-2012) filed by the plain+ff (respondent No.1 herein) and allowing the
applica+on under Order 41 Rule 27 CPC and further direc+ng the trial Court to
allow the amendment in pleadings, if sought by the plain+ff.
2. In order to avoid confusion, the par+es shall be referred as per
their status before the trial Court.
3. Brief facts of the case are that as per the case set up by the
plain+ff - Lalit Mohan Rajprohat, Smt. Chanchal Rani and Shri Sanjiv Gula+
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were earlier recorded to be the owner of the land measuring 20 Marlas
comprised in Khasra No.13142 situated at Mohalla Gobind Nagar, Jalandhar in
Jamabandi for the year 1989-90. Chanchal Rani executed a general power of
a>orney dated 07.11.1990 regarding 10 marlas of the said land in favour of
Vikas Chhabra & Manmohan Singh. Sanjiv Gula+ had also executed a general
Power of a>orney in favour of Chanchal Rani and by virtue of the same, she
further executed special power of a>orney dated 26.09.1994 regarding the
share of Sanjiv Gula+ in favour of Vikas Chhabra & Manmohan Singh. By virtue
of these power of a>orneys in their favour in respect of total 20 marlas of
land, Vikas Chhabra & Manmohan Singh entered into an agreement to sell of
the said land in favour of plain+ff - Lalit Mohan Rajprohat and later, executed
two separate sale deeds dated 30.04.1996 for 10 marlas each for
considera+on and then name of the plain+ff was reflected in jamabandi for
the year 1999-2000. It was alleged by the plain+ff that defendant No.1 -
Dushyant Bansal (respondent No.2 herein) executed a sale deed dated
12.04.2005 in favour of defendant Nos.2 and 3 (respondent No.3 and
appellant herein) and on the basis of said sale deed, they tried to take forcible
possession of the suit property. Plain+ff challenged the sale deed dated
12.04.2005 to be the result of fraud, fabrica+on and mis-representa+on.
Though the ma>er was reported to the police, but it was alleged that in
connivance with the police, defendant Nos.2 and 3 succeeded in taking illegal
possession of the suit property. Plain+ff prayed for declaring the sale deed
dated 12.04.2005 as null and void.
4. Defendants contested the suit and following issues were
framed:-
"1. Whether plain+ff is en+tled for declara+on as prayed for? OPP
2. Whether plain+ff is en+tled for possession as prayed for? OPP
3. Whether plain+ff is en+tled for cancella+on of sale deed dated 12.04.05
executed by defendant No.1? OPP
4. Whether plain+ff is en+tled for permanent injunc+on as prayed for? OPP
5. Whether suit is not maintainable in the present form? OPD
6. Whether plain+ff has got no locus-standi to file the present suit? OPD
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7. Whether the plain+ff has not come to the court with clean hands? OPD
8. Whether site plan a>ached with plaint is wrong? OPD
9. Relief." "
5.1 AHer taking the evidence produced by the par+es, suit was
dismissed by the trial Court vide judgment and decree dated 17.01.2011.
5.2 Plain+ff filed appeal in the District Court. Before the First
Appellate Court, the plain+ff (appellant therein) moved an applica+on under
Order 41, Rule 27 CPC. It was pleaded in the applica+on that defendant No.1 -
Dushyant Bansal had challenged the +tle of Chanchal Rani and Sanjiv Gula+,
i.e. vendors of the plain+ff in respect of Khasra No.13142. Rather, said
defendant No.1 claimed ownership of the suit property on the basis of
judgment & decree dated 01.02.2002 passed in Civil Suit No.329 of 2001, on
the basis of an agreement to sell dated 07.09.1974. It was alleged that the
persons, who had executed the agreement to sell dated 07.09.1974, i.e. Ram
Kaur etc. were not owners of the suit land and so, they could not have suffered
the decree in favour of Dushyant Bansal. Plain+ff sought to place on record
jamabandi for the year 1974-75.
5.3 The applica+on was opposed by the defendants.
6. Learned First Appellate Court in para Nos.13 and 14 of the
impugned order dated 15.11.2016 observed as under:-
"13. Now learned counsel for the appellant wants to lead addi+onal
evidence by moving an applica+on Wo 41 Rule 27 CPC and cer+fied copy of
the jamabandi 1974-75 has also been placed on record. According to this
jamabandi 1974-75, Central Govt was the owner of the property involved in
Civil Suit No.329 of 2001 filed by respondent Dushyant Bansal against Ram
Kaur, Sujan Singh, Chhangu Mal, Shingara Singh and Mangal Singh, through
their a>orney Mangat Rai on the basis of an agreement to sell dated
7.2.1974. As per the revenue record, jamabandi 1974-75, none of the
defendant involved in Civil Suit 329 of 2001 +tled as Dushyant Bansal vs. Ram
Kaur and others, was the owner of the property involved in an agreement
dated 7.2.1974. Now ques+on arises in which capacity said Ram Kaur and
others had executed an agreement to sell dated 7.2.1974, on the basis of
which respondent Dushyant Bansal got a civil Court decree dated 1.2.2002 by
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filing a suit for possession in the year, 2001 on the basis of an agreement
dated 7.2.1974.? So, evidence sought by the appellant to produce in
addi+onal evidence is very much essen+al to determine the real controversy
between the par+es as well as how the land of Central Govt, has been sold by
the then defendants Ram Kaur and others in favour of Dushyant Bansal. So, in
these circumstances, applica+on for addi+onal evidence filed by the appellant
deserves to be allowed.
14. Now come to the judgment and decree dated 17.01.2011 is concerned,
this judgment has also been passed by the I earned trial court merely on the
basis of judgment and decree dated 1.2.2002 passed on the basis of an
agreement to sell dated 7.2.1974 and dismissed the suit of the appellant.
Whereas, said defendants in judgment and decree dated 1.2.2002 were not
prima-facie the owners of the property as per jamabandi dated 1974-75
produced by the appellant in addi+onal evidence applica+on. Since, they
were not the owners, how they could pass be>er +tle in favour of Dushyant
Bansal, as per agreement dated 7.2.1974, on the basis of which judgement
and decree dated 1.2.2002 Ex.D2 was passed."
7. AHer making the aforesaid observa+ons, the First Appellate
Court accepted the appeal, set aside the judgment and decree dated
17.01.2011 of the trial Court, allowed the applica+on under Order 41 Rule 27
CPC and remanded the case back to the trial Court with the direc+on to decide
it afresh aHer taking proposed addi+onal evidence and also to allow
amendment in the pleadings if sought by the appellant or by the respondent
and to grant proper opportuni+es to the par+es to lead their evidence.
8. The aforesaid order of the First Appellate Court is assailed by
defendant No.3 of the case before this Court. Learned counsel for the
appellant has made 03 fold submissions :-
(1) The proposed addi+onal evidence was very much in the knowledge of
the plain+ff, i.e. appellant before the First Appellate Court and so,
applica+on under Order 41 Rule 27 CPC should not have been allowed.
(2) There was no prayer by any of the par+es before the First Appellate
Court to amend the pleadings and therefore, the First Appellate Court
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could not have given any such direc+on.
(3) First Appellate Court could not have remanded the ma>er to the trial
Court for fresh decision.
Learned counsel has relied upon the following authori+es:-
1. "H.V. Vedavyasarchar v. Shivashankara and others", 2009(4) RCR
(Civil) 172.
2. "Syeda Rahi Munnisa v. Malan Bi (dead) by LRs and others",
2016(4) RCR (Civil) 774.
3. "Sirjudheen v. Zeenath and another", 2023 (2) 744 RCR (Civil).
4. "Govt. of Karnataka and others v. K.C. Subramanya and others" ,
2014(13) S.C.C. 468.
5. "Surjit Singh and others v. Varinder Singh and others" 2009(5) RCR
(Civil) 669.
6. "Narain Singh and others v. Amarjeet Kaur and another", 2014(1)
RCR (Civil) 870.
7. "Rachhpal Singh v. Sohan Singh", 2007(4) RCR (Civil) 166.
9. Learned counsel for the contes+ng respondent No.1 - plain+ff
opposed the appeal and submi>ed that in the facts and circumstances of the
case, the order passed by the First Appellate Court is proper and legal.
10. Having considered submissions of both the sides, this Court finds
merit in two of the points as raised by learned counsel for the appellant.
11. Order 41 Rule 27 CPC provides about the produc+on of
addi+onal evidence in Appellate Court, which reads as under:-
"27. Produc/on of addi/onal evidence in Appellate Court.--(1) The
par,es to an appeal shall not be en,tled to produce addi,onal evidence,
whether oral or documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admi3ed,
or
(aa) the party seeking to produce addi,onal evidence,
establishes that notwithstanding the exercise of due diligence, such
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evidence was not within his knowledge or could not, a6er the exercise
of due diligence, be produced by him at the ,me when the decree
appealed against was passed, or
(b) the Appellate Court requires any document to be produced
or any witness to be examined to enable it to pronounce judgment,
or for any other substan,al cause,
the Appellate Court may allow such evidence or document to be produced, or
witness to be examined.
(2) Wherever addi,onal evidence is allowed to be produced by an Appellate
Court, the Court shall record the reason for its admission."
12. As is evident from the abovesaid provision, produc+on of the
addi+onal evidence by the Appellate Court can be allowed in following three
circumstances:-
(I) If the trial Court has refused to admit evidence, which ought
to have been admi>ed.
(II) The party seeking to produce addi+onal evidence is able to
establish that despite due diligence, the proposed addi+onal was not
within his knowledge or could not be produced despite diligence at the
+me when the decree appealed against was passed.
(III) If the Appellate Court requires any documents to be produced or
any witness to be examined
(a) to enable it to pronounce the judgment or
(b) for any other substan+al cause.
13. In the present case, it was neither the case of the plain+ff before
the First Appellate Court that trial Court had refused to admit the proposed
addi+onal evidence, i.e. jamabandi for the year 1974-75 nor it was the case of
the plain+ff that the said evidence was not within his knowledge. However,
the Appellate Court has given specific reasons as to why the proposed
addi+onal evidence, i.e. jamabandi for the year 1974-75 was necessary,
inasmuch as it is the Central Government, which was the owner of the
property involved in Civil Suit No.329 of 2001, which had been filed by
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defendant No.1 - Dushyant Bansal against Ram Kaur etc. based upon an
agreement to sell dated 07.01.1974 and that none of the defendants of that
case Ram Kaur etc. were recorded to be the owner of the land. In these facts
and circumstances, produc+on of the jamabandi for the year 1974-75 was
considered essen+al by the Appellate Court to determine the real controversy
between the par+es, as to how the land of the Central Government was sold
by the defendants in Civil Suit No.329 of 2001, i.e. Ram Kaur and others to
Dushyant Bansal.
14. As jus+fiable reasons have been given by the First Appellate
Court, therefore, the conten+on of learned counsel for the appellant before
this Court that applica+on under Order 41 Rule 27 CPC should not have been
allowed, has no merit and as such, the said conten+on is rejected. The
authori+es, i.e. Govt. of Karnataka and others v. K.C. Subramanya and others
(supra), Surjit Singh and others v. Varinder Singh and others (supra), Narain
Singh and others v. Amarjeet Kaur and another (supra) and Rachhpal Singh
v. Sohan Singh (supra) cited by learned counsel for the appellant are not
applicable to the facts and circumstances of this case.
15. The second conten+on raised by learned counsel for the
appellant has substance. No prayer had been made either by the plain+ff
(appellant before the First Appellate Court) or by the opposite party seeking
amendment in their pleadings. As such, direc+on given by the First Appellate
Court to the trial Court to allow to amend the pleadings, if sought by any of
the par+es, was absolutely improper. As such, said direc+on of the First
Appellate Court cannot at all be jus+fied.
16. Coming to the third point raised by learned counsel for the
appellant, Order 41 Rule 28 CPC reads as under:-
"28. Mode of taking addi/onal evidence.--Wherever addi,onal
evidence is allowed to be produced, the Appellate Court may either take such
evidence, or direct the Court from whose decree the appeal is preferred, or
any other subordinate Court, to take such evidence and to send it when taken
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to the Appellate Court "
17. A bare perusal of the abovesaid provision clearly indicates that
when the applica+on for adducing addi+onal evidence is allowed, as in the
present case, the Appellate Court has two op+ons open to it:-
(i) it may record the evidence itself, or
(ii) it may direct the court from whose decree the appeal is preferred (trial
Court in this case) to do so.
This provision does not indicate that the Appellate Court can remand the case
in above circumstances to the court from whose decree the appeal is
preferred. Rather, in case the appellate court adopts the second op+on i.e.,
direct the court from whose decree the appeal is preferred (trial Court in this
case) to take addi+onal evidence, then the direc+on is to go further to the
effect that concerned court, aHer recording evidence, has to return it to the
appellate court.
18. Of course, the trial Court has the power to remand the case, but
only in such circumstances, which are covered under Order 41 Rule 23, 23-A or
25 CPC. These rules may be tabulated as under:
Order XLI
Rule 23 Remand of case by Appellate Pre-requisites:
Court-- Where the Court from x The court, whose decree is
under appeal, has disposed of
whose decree an appeal is the suit upon a preliminary
preferred has disposed of the point.
x The appellate court has
suit upon a preliminary point reversed the decree.
and the decree is reversed in
Op<ons open for appellate court:
appeal, the Appellate Court
x It may remand the case
may, if it thinks fit, by order x may direct what issue or
issues shall be tried in the
remand the case, and may
case so remanded
further direct what issue or What is to be done by the appellate
court:
issues shall be tried in the case
x To send a copy of its judgment
so remanded, and shall send a and order to the concerned
court
copy of its judgment and order
Direc<ons to be sent by the
to the Court from whose decree appellate court:
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the appeal is preferred, with x To readmit the suit at original
direc,ons to re-admit the suit number in relevant register
x To proceed to determine the
under its original number in the suit
register of civil suits, and The consequence:
x the evidence (if any) recorded
proceed to determine the suit; during the original trial shall,
and the evidence (if any) subject to all just excep+ons,
be evidence during the trial
recorded during the original aHer remand.
trial shall, subject to all just
excep,ons, be evidence during
the trial a6er remand
Rule Remand in other cases-- Where Pre-requisites:
23A the Court from whose decree an x The court, whose decree is
under appeal, has disposed of
appeal is preferred has disposed the suit otherwise than a
of the case otherwise than on a preliminary point.
x The appellate court has
preliminary point, and the reversed the decree.
decree is reversed in appeal and x Retrial is considered
necessary
a retrial is considered necessary,
the Appellate Court shall have Op<ons open for appellate court:
[Same as under Rule 23]
the same powers as it has under
rule 23.
Rule 25 Where Appellate Court may Pre-requisites:
frame issues and refer them for x The court, whose decree is
under appeal, has disposed of
trial to Court whose decree the suit has
appealed from-- Where the o omi>ed to frame any issue or
o omi>ed to try any issue, or
Court from whose decree the o to determine any ques+on of
appeal is preferred has omi3ed fact
x The appellate court considers
to frame or try any issue, or to
it essen+al for the right
determine any ques,on of fact, decision of the suit upon the
merits
which appears to the Appellate
Court essen,al to the right Op<ons open for appellate court:
decision of the suit upon the x May frame issues, and
x refers the same for trial to the
merits the Appellate Court may, concerned court
if necessary, frame issues, and x To direct such court to take
the addi+onal evidence
refer the same for trial to the required
Court from whose decree the
What the trial court has to do:
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appeal is preferred, and in such x To proceed to try such issues,
and
case shall direct such Court to
x To return the evidence to the
take the addi,onal evidence Appellate Court together with
its findings thereon and the
required; and such Court shall
reasons therefor
proceed to try such issues, and x within such +me as may be
shall return the evidence to the fixed by the Appellate Court
or extended by it from +me to
Appellate Court together with +me
its findings thereon and the
reasons therefor within such
,me as may be fixed by the
Appellate Court or extended by
it from ,me to ,me."
19. Thus, under Rule 23, the Appellate Court can remand, when the
ma>er was disposed of by the trial Court upon a preliminary issue and the
decree is reversed in appeal. Necessary direc+on can be given by the
Appellate Court as to what issues are to be tried on the ma>er being
remanded. Under Rule 23-A, when the trial Court has disposed of the case,
otherwise than on a preliminary issue and the decree is reversed in appeal and
re-trial is considered necessary, then the Appellate Court has the powers as
per Rule 23. Under Rule 25, order for remand can be made by the Appellate
Court, when the trial Court has omi>ed to frame or try any issue or determine
any ques+on of fact and Appellate Court considers it to be essen+al for the
right decision of the suit on merits.
20. In the present case, none of the situa+ons as are referred in Rule
23, 23-A and 25 of Order 41 of CPC were before the First Appellate Court and
as such, the remand order could not have been passed.
21. In H.V. Vedavyasarchar v. Shivashankara and others (supra), it
was held by Hon'ble Supreme Court as under:-
"6. However, so far as the second conten+on raised by the learned
counsel for the appellant is concerned, in our opinion, the same has
substance. When an applica+on for adducing addi+onal evidence is allowed,
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the appellate court has two op+ons open to it. It may record the evidence
itself or it may direct the trial court to do so. Order 41 Rule 28 of the Civil
Procedure Code reads as under:-
"28. Mode of taking addi/onal evidence - Wherever addi,onal
evidence is allowed to be produced, the Appellate Court may either
take such evidence, or direct the Court from whose decree the appeal
is preferred, or any other subordinate Court, to take such evidence and
to send it when taken to the Appellate Court."
7. For the aforemen+oned purpose, in our considered opinion, the High Court
could not have directed the trial court to dispose of the suit aHer taking
evidence. Such an order of remand could be only in terms of Order 41 Rule
23, Order 41 Rule 23A or Order 41 Rule 25 of the Code. None of the said
provisions have any applica+on in the instant case.
8 This Court in Shan< Devi & Ors. v. Darop< Devi And Others, 2007(1) RCR
(Civil) 411: 2007(1) RAJ 15: (2006)13 SCC 775 has held as under:
"But the same by itself could not be a ground for remiOng the en+re suit to
the learned trial judge upon seOng aside the decree of the learned trial
court. The power of remand vests in the appellate court either in terms of
Order 41 Rule 23 and 23A or Order 41 Rule 25 of the Civil Procedure Code.
Issue 4 was held to have been wrongly framed. Onus of proof was also
wrongly placed and only in that view of the ma>er the High Court thought it
fit to remit it to the learned trial judge to determine a ques+on of fact, which
according to it was essen+al upon reframing the issue."
22. In another case +tled as Syeda Rahi Munnisa v. Malan Bi (dead)
by LRs and others (supra), it has been held by Hon'ble Supreme Court as
under:-
" 35. It is a se>led principle of law that in order to claim remand of the
case to the trial court, it is necessary for the appellant to first raise such plea
and then make out a case of remand on facts. The power of the appellate
court to remand the case to subordinate court is contained in Order 41, Rule
23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring
the case under any of these provisions before claiming a remand. The
appellate court is required to record reasons as to why it has taken recourse
to any one out of the three Rules of Order 41 of CPC for remanding the case
to the trial court. In the absence of any ground taken by the respondents
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(appellants before the first appellate court and High Court) before the first
appellate court and the High Court as to why the remand order in these cases
is called for and if so under which Rule of Order 41 of CPC and further in the
absence of any finding, there was no jus+fica+on on the part of the High
Court to remand the case to the trial court. The High Court instead should
have decided the appeals on merits. We, however, do not consider proper to
remand the case to High Court for deciding the appeals on merits and instead
examine the merits of the case in these appeals.
23. In view of the legal posi+on as expounded above by Hon'ble the
Apex Court, it is thus clear that before seeking remand, it is obligatory upon
the appellant to bring the case under Order 41 Rule 23, 23-A or 25 of CPC and
the Appellate Court is required to record reasons as to why it has taken
recourse to anyone out of three Rules of Order 41 of CPC for remanding the
case to the trial Court.
24. In view of the aforesaid discussion, it is held that the order dated
15.11.2016 passed by the First Appellate Court remanding the ma>er to the
trial Court, aHer allowing applica+on under Order 41 Rule 27 CPC, cannot be
sustained in the eyes of law, as present case is not covered under either of the
provision of Order 41 Rule 23, 23-A or 25 of CPC.
25. Consequently, the present appeal is hereby disposed of in the
following terms:-
(a) The order of the First Appellate Court allowing the applica+on under Order
41 Rule 27 CPC for produc+on of the addi+onal evidence by the plain+ff
(appellant before the First Appellate Court), is sustained.
(b) Direc+on by the First Appellate Court to the trial Court to allow
amendment in the pleadings, if sought by any of the par+es and then to grant
opportuni+es to them to lead evidence, is hereby set aside.
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(c) The direc+on of the First Appellate Court remanding the case back to the
trial Court to decide it afresh aHer taking proposed addi+onal evidence, is
hereby set aside.
26. Since the proposed addi+onal evidence is only a Jamabandi for
the year 1974-75, which can be adduced before the First Appellate Court itself,
therefore, the First Appellate Court is hereby directed to take the said
proposed addi+onal evidence and then proceed further with the appeal as
filed by the plain+ff-respondent No.1, in accordance with law.
Disposed of accordingly.
August 05, 2024 (DEEPAK GUPTA)
sarita JUDGE
Whether reasoned/speaking: Yes
Whether reportable: Yes
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