Lad Kanwar Bai vs Gram Panchyat Manohar Thana
2022 Latest Caselaw 3861 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Miscellaneous Appeal No. 64/2002

1. Ladkanwar Bai wife of Uma Shankar Nyati resident of
Manoharthana, District Jhalawar.
2.   Ramakant        son    of     Uma       Shankar         Nyati    resident   of
Manoharthana, District Jhalawar.
3.   Madhukant       son     of    Uma        Shankar         Nyati   resident   of
Manoharthana, District Jhalawar.
4.   Manikand      son     of     Uma        Shankar         Nyati    resident   of
Manoharthana, District Jhalawar.
5. Gopal son of Uma Shankar Nyati resident of Manoharthana,
District Jhalawar.
6.   Raghuveer       son    of     Uma       Shankar         Nyati    resident   of
Manoharthana, District Jhalawar.
7. Bharat Bhushan son of Uma Shankar Nyati resident of
Manoharthana, District Jhalawar.
8. Chanda Devi wife of Mahesh Kumar Laddha d/o Uma Shankar
Nyati resident of Ratlam (MP).
9. Vidhya Devi wife of Harimohan Maheshwari d/o Uma Shankar
resident of Kota, District Kota (Raj.)
                                                          ----Appellants-plaintiff
                                     Versus
Gram Panchyat Manoharthana through Administrator, Gram
Panchayat, Manoharthana.
                                                   ----Respondent-defendant.

For Appellant(s)           :      Mr. R.P. Singh for
                                  Mr. JK Singhi
For Respondent(s)          :      None present



       HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                  Judgment

17/05/2022

This misc. appeal under Order 43 Rule 1(u) read with Section

151 CPC has been directed against the impugned judgment dated

04.10.2001 passed by the Court of Additional District Judge,

(2 of 8) [CMA-64/2002]

Aklera, District Jhalawar in regular appeal No.8/2000 by which the

appeal filed by the defendant-respondent was allowed and after

setting aside the judgments dated 04.06.1994 and 18.10.2000

passed by the Civil Judge (Junior Division), Jhalawar in original

suit No.95/1993, the case was remitted back to the trial Court for

fresh adjudication.

Facts, in brief, of the case are that the plaintiff (appellant

herein) instituted a suit for perpetual injunction under the Specific

Relief Act for removal of wall against the defendant before the

Court of Civil Judge (Junior Division), Aklera, District Jhalawar,

which was decreed on 04.06.1994 and the defendant was directed

to remove the wall as described in Para No.1 of the plaint and not

to cause any hinderance or interference with the possession of the

plaintiff and the defendant was further directed to pay cost of

Rs.500/-.

Feeling aggrieved by the judgment dated 04.06.1994, the

defendant submitted Regular First Appeal before the Court of

Additional District Judge, Aklera, District Jhalawar and also

submitted an application under Order 41 Rule 27 and 28 CPC for

taking certain documents on record and prayed for remanding the

matter to the trial Court for fresh adjudication of the suit after

giving opportunity of hearing to both sides to lead their evidence

and to decide the suit afresh. And accordingly the suit was

remanded back by the Appellate Court to the trial Court vide

judgment dated 04.01.2000.

After remand of the matter, no fresh evidence was produced

by the defendant before the trial Court, hence, the opportunity of

defendant for producing evidence was closed on 12.05.2000 and

case was posted for final arguments.

(3 of 8) [CMA-64/2002]

Thereafter, defendants submitted applications under Sections

151 and 152 CPC, which were dismissed by the trial Court vide

order dated 02.06.2000 and 11.10.2000 respectively and finally

arguments were heard and on the basis of issues and the evidence

available on the record, the trial Court decreed the suit vide

judgment and decree dated 18.10.2000 directing the defendant to

remove the wall and not to cause any obstruction in the

possession of the plaintiff with regard to the disputed land

mentioned in Para No.1 of the plaint.

Aggrieved by the judgment and decree dated 18.10.2000,

the defendant submitted Regular First Appeal before the Court of

Additional District Judge, Aklera, District Jhalawar and the same

was allowed vide judgment and decree dated 04.10.2001 and

again the matter was remanded back to the trial Court with a

direction to frame additional issue and to decide it afresh after

affording opportunity of hearing to both sides.

Feeling aggrieved by the impugned judgment and decree

dated 04.10.2001, instant appeal has been submitted.

Learned counsel for the appellant argued that there was no

occasion with the Appellate Court to pass the judgment of

remand. Both parties have gone to the trial Court fully knowing

the rival case and had led all the evidence in support of their case.

No request for framing of additional issue was made before the

trial Court when the suit remained pending before it for a

considerable long time and on the basis of the evidence, the

judgment and decree was passed on 04.06.1994.

Counsel further submitted that against the said judgment

and decree dated 04.06.1994 the defendant submitted Regular

First Appeal before the Court of Additional District Judge, Aklera,

(4 of 8) [CMA-64/2002]

District Jhalawar and the matter was remitted back to the trial

Court with certain directions, which were not complied with by the

defendant and no fresh and additional evidence was produced on

the record. Hence, the trial Court rightly decreed the suit again in

favour of the plaintiff. Counsel further submitted that there was no

ground available with the Appellate Court again to remand the

matter, to decide it again and again afresh. The matter was

already remanded on the request of defendant and defendant had

failed to produce fresh evidence in support of his contentions.

Lastly, he argued that the matter may kindly be send back to the

Appellate Court to decide the appeal on its merits.

None is there to oppose this appeal despite service of

notice. It appears that the defendant is not interested in pursuing

with the matter, that is why, neither the evidence was produced

before the trial Court after first remand by the appellate Court and

again after remand of the matter, none has put appearance before

this Court while this appeal is pending before this Court since last

two decades.

Hence, this Court is left with no option except to decide the

matter on merits.

I have heard counsel for the appellant and perused the

record.

Rules 23, 23-A, 24, 25 and 26 of Order 41 C.P.C. deal with

the remand of cases by the appellate court. Rule 23 deals with a

case of remand where the suit has been disposed of on a

preliminary point and Rule 23-A which was inserted by CPC

Amendment Act of 1976 deals with the powers of the appellate

court with regard to remand in cases disposed of otherwise on a

preliminary point and provides that the appellate court shall have

(5 of 8) [CMA-64/2002]

the same powers of remand as under Rule 23. Rule 24 enables

and empowers the appellate court if the evidence on record is

sufficient to pronounce judgment even after resettling the issue, if

necessary. Rule 25 deals with the cases where it appears to the

appellate court that the trial court has omitted to frame or try an

issue or to determine any question of fact which is essential to the

right decision of the suit on merits, the appellate court may, if

necessary, frame such an issue and refer the same for trial to the

court below and in such case it shall direct such court to try such

issue and to return the evidence together with its findings thereon

and reasons therefor within the time fixed by it or extended by it.

In P. Purushottam Reddy v. Pratap Steels Ltd., reported in AIR 2002

SC 771, their Lordships of the Hon'ble Apex Court have considered

these rules and have held as under :-

'Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 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 decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch 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 therefor of the trial Court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1876 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or

(6 of 8) [CMA-64/2002]

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 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if 0) 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 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23- A. In view of the express provisions of these recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 1965 SC 364), it is well settled that inherent power can be availed of ex debito justitia 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 dehors Rule 23 and 23-A. 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 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and sent the matter back for rewriting 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 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."

Thus, it is apparent and well settled that where the evidence

on record is sufficient to decide the matter and controversy in

between the parties, the appellate Court should not remit the case

to the trial Court. It should itself decide the matter. If it is

necessary to frame additional issue, the appellate court can very

well frame issues which appear to it necessary and then decide

the matter on the evidence on record if there is sufficient

evidence. But even where it comes to the conclusion that some

important issue has been left out or omitted by the trial court and

it is essential to frame such an issue and the evidence on, such an

issue has not been led by the parties or is in-sufficient, then it can

(7 of 8) [CMA-64/2002]

very well frame additional issue and remit the additional

issue/issues for taking evidence on the additional issue/issues with

the direction to send back evidence along with findings on such

issue but it does not empower the appellate court to set aside the

entire judgment and decree passed by the trial Court and the

procedure for decision on the additional issue has also been given

in Rule 26 of Order 41 CPC.

In the instant case, learned first appellate court has

completely ignored and given a go-bye to the aforesaid provisions

of law. It has set aside the entire judgment and decree passed by

the trial court which it was not competent to do as per the

aforesaid provisions and the law laid down in this behalf by the

Hon'ble Apex Court.

In the instant case, both the parties led the evidence and

produced the documents before the trial Court and on the basis of

the same, the suit was decreed on 04.06.1994.

Despite of remand of matter, no sincere efforts were made

by the defendant to produce any additional evidence or document.

Hence, again the trial Court decreed the suit in favour of the

plaintiff. If at all, defendant was aggrieved, then, he could have

approached the Court to decide the issue in question on its merits.

The First Appellate Court appears to have not kept in view

the relevant provisions under which it could remand the case and

has quashed the entire decree passed by the trial Court and has

remitted the case for deciding it afresh, which is neither justified

nor sustainable in the face of law laid down by the Hon'ble

Supreme Court in the case of P. Purushottam Reddy (supra).

(8 of 8) [CMA-64/2002]

In view of the above discussions, this appeal deserved to be

and is hereby allowed.

The judgment and order dated 04.10.2001 passed by the

First Appellate Court quashing the entire judgment and decree

dated 04.06.1994 is hereby quashed and set aside. And the

Appellate Court is directed to dispose of the appeal in accordance

with law.

Parties are directed to appear before the Appellate Court on

27.05.2022.

Since the defendant/respondent has remained unrepresented

before this Court, the Appellate Court is directed to issue fresh

notice to the defendant for its appearance to argue the appeal

filed by it.

Since the suit was filed 30 years back in the year 1992, it is

expected from the Appellate Court to decide the suit expeditiously

as early as possible preferably within a year from the date of

receipt of certified copy of this order.

Stay application and all pending application(s) stand

disposed of.

Record of the Court concerned be sent back forthwith.

(ANOOP KUMAR DHAND),J

HEENA GANDHI /1

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