THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C.R.P. No. 01 of 2023
1. Bhagi Maya Gurung,
Aged about 58 years,
Wife of Deo Narayan Gurung,
Resident of Nizremang,
P.O. Perbing and P.S. Namchi,
South Sikkim-737 126.
2. Ratna Kumari Gurung,
Aged about 55 years,
Wife of Dawa Tashi Sherpa,
Resident of Nizremang,
P.O. Perbing and P.S. Namchi,
South Sikkim-737 126.
..... Revisionists/Plaintiffs
Versus
1. Mahindra Gurung,
Aged about 68 years,
Son of Late Kul Bahadur Gurung,
Resident of Nizremang,
P.O. Perbing and P.S. Namchi,
South Sikkim-737 126.
2. Kharka Kumar Gurung,
Aged about 64 years,
Son of Late Kul Bahadur Gurung,
Resident of Nizremang,
P.O. Perbing and P.S. Namchi,
South Sikkim-737 126.
3. Devi Maya Gurung,
Aged about 53 years,
W/o Late Junge Gurung,
4. Durgay Gurung,
Aged about 36 years,
Son of Late Junge Gurung,
5. Ashok Gurung,
Aged about 34 years,
Son of Late Junge Gurung,
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C.R.P. No. 01 of 2023
Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
6. Chandra Bahadur Gurung,
Aged about 30 years
Son of Late Junge Gurung
7. Lachu Gurung,
Aged about 28 years,
Son of Late Junge Gurung,
8. Deegen Gurung,
Aged about 17 years,
Son of Late Junge Gurung
9. Tara Gurung,
Aged about 24 years,
Daughter of Late Junge Gurung,
Wife of Pema Ongchu Sherpa,
Respondent no. 3 to 9 are the Residents of Nizremang
P.O. Perbing & P.S. Namchi,
South Sikkim - 737 126.
10. Renuka Gurung,
Aged about 22 years,
Daughter of Late Junge Gurung,
Wife of Rinzing Lepcha,
Resident of Palak,
P.O. Bermiok P.S. Temi,
South Sikkim - 737 134.
11. Sub-Divisional Magistrate-cum-Registrar,
Land Revenue and Disaster Management
Department, Namchi
Sikkim -737126.
.....Respondents/Defendants
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Application under Section 115 read with Section 151 of the
Code of Civil Procedure, 1908.
(Order dated 09.11.2022 passed by the Learned District Judge, South Sikkim
at Namchi in Title Appeal No. 03 of 2020, Shri Mahindra Gurung & Ors. Vs.
Bhagi Maya Gurung and Anr. setting aside order dated 09.11.2022 passed
by the learned District Judge, South Sikkim at Namchi in Title Appeal No. 03
of 2020, Shri Mahindra Gurung and Ors. vs. Bhagi Maya Gurung & Anr.)
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Appearance:
Ms. Gita Bista, Legal Aid Counsel for the
Revisionists/Plaintiffs.
Ms. Yangzee Pinasha, Advocate for
Respondent/Defendants Nos. 1 to 10.
Mr. Yadev Sharma, Government Advocate and Ms. Pema
Bhutia, Assistant Government Advocate for
Respondent/Defendant No.11.
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3
C.R.P. No. 01 of 2023
Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
Date of hearing : 12.05.2023
Date of Order : 12.05.2023
O R D E R (O R A L)
Bhaskar Raj Pradhan, J.
1. The present revision petition challenges the Order
passed by the learned District Judge dated 09.11.2022
(impugned order) in Title Appeal No. 03 of 2020 remanding
the matter for fresh disposal on merits without reversing
the decree in appeal. The revision petition therefore, raises
an important question on the scope of Order XLI Rule 23A
of the Code of Civil Procedure, 1908 (CPC).
2. Title Suit No.12 of 2018 was preferred by the
revisionists/plaintiffs against the respondents/defendants.
The Trial Court framed 16 issues on 09.07.2019 and
proceeded to take evidence. The revisionists/plaintiffs
examined four witnesses. The respondent nos. 1 to
10/defendant nos. 1 to 7 examined seven witnesses. The
defendant no.11 examined three witnesses. Various
documentary evidences were also exhibited by the parties.
The learned Trial Judge after examining the issues
rendered her judgment and passed the decree both dated
24.12.2019. Title Appeal No. 03 of 2020 was thereafter,
preferred by the respondent nos. 1 to 10/defendant nos. 1
to 10.
4
C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
3. The impugned order records the rival submission of
the learned counsel for the parties. It was neither the
contention of the revisionists/plaintiffs nor the
respondents/defendants that they had failed to understand
the issues framed or were confused on whom the burden of
proving the same lay. However, by the impugned Order
dated 09.11.2022 the learned District Judge concluded
that though 16 issues have been framed, the learned Trial
Judge had failed to fix the onus upon the parties and
therefore, the parties had adduced their evidence without
onus being fixed. The learned District Judge was also of the
opinion that for certain contentions raised by the parties
i.e. the contention of the revisionists/plaintiffs that the suit
land was stridhan of their late mother; contention of the
respondent nos. 1 to 10/defendant nos. 1 to 10 that the
suit land was self acquired property of their late father; and
the contention of the performa respondent no.11/defendant
no.11 that the suit land was mutated following due process
of law, proper evidence was not placed before the learned
Trial Judge owing to which it is difficult for the Appellate
Court to decide the appeal. In such circumstances, the
learned District Judge resorted to the provisions of Order
XLI Rule 23A of the CPC and remanded the matter to the
Trial Court for fresh disposal on merits. The learned
District Judge directed the Trial Court to reframe the 5 C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
issues, if required, for adjudication fixing onus upon the
parties, conduct the trial to ascertain the issues, and to
dispose the case within a period of 6 months from the date
of first appearance of the parties.
4. Heard Ms. Gita Bista, learned counsels for the
revisionists/plaintiffs, Ms. Yangzee Pinasha, learned
counsel for the respondent nos.1 to 10/defendant nos. 1 to
10 and Mr. Yadev Sharma, learned Government Advocate
for respondent no.11/defendant no.11.
5. Order XLI Rule 23A CPC reads as under:
"Remand in other cases. - Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."
6. In order for the Appellate Court to exercise the same
powers as it has under Order XLI Rule 23, Rule 23 A of the
CPC involves two pre-requisites. Firstly, the decree is
required to be reversed in appeal. Secondly, the Appellate
Court must conclude that retrial is necessary. The
Supreme Court in Jegannathan vs. Raju Sigamani & Anr.1
held that Order XLI Rule 23A provides that where the trial
court has disposed of the suit on merits and the decree is
reversed in appeal and the Appellate Court considers that
retrial is necessary, the appellate court may remand the
1 (2012) 5 SCC 540 6 C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
suit to the trial court. In Shiva Kumar vs. Sharanabasappa2
the Supreme Court held that a comprehension of the
scheme of the provision for remand as contained in Rule 23
and 23A of Order XLI is not complete without reference to
the provisions contained in Rule 24 of Order XLI that
enables the appellate court to dispose of a case finally
without a remand if the evidence on record is sufficient.
The Supreme Court held that a conjoined reading of Rules
23, 23A and 24 of Order XLI brings forth the scope as also
contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper
course for an appellate court is to follow the mandate of
Rule 24 of Order XLI CPC and to determine the suit finally.
It is only in such cases where the decree in challenge is
reversed in appeal and a retrial is considered necessary
that the appellate court shall adopt the course of
remanding the case. It remains trite that order of remand is
not to be passed in a routine manner because an
unwarranted order of remand merely elongates the life of
the litigation without serving the cause of justice.
7. The impugned order passed by the learned District
Judge does not satisfy the two pre-requisites of Order XLI
Rule 23A of the CPC.
2 (2021) 11 SCC 277 7 C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
8. The learned District Judge did not reverse the decree
in appeal.
9. A perusal of the impugned judgment reflects that the
learned District Judge was concerned about the Trial Court
not fixing the burden of the issues on the parties. Order
XIV of the CPC is an important procedure which will decide
the fate of the trial. The learned Trial Judge is required to
examine the material preposition of fact or law affirmed by
one party and denied by the other and frame distinct
issues. Issues are framed when material proposition of fact
or law is affirmed by one party and denied by the other.
When a material proposition of fact or law is affirmed by
one party and denied by the other the burden to prove the
same is cast upon the party who affirms it. To ensure that
the parties who go to trial are aware that they are burdened
to prove the fact asserted by them the Trial Court fixes the
burden while framing the issues.
10. The Trial Court having framed issues proceeded to
take evidence and render a judgment on all the issues. The
Trial Court was not troubled in rendering the judgment
although no burden was cast upon the parties. It is also
equally clear that the parties before the Trial Court, both
during the trial as well as during the hearing of the case,
were clear as to which of the issues had to be proved by 8 C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
whom. This is the specific submission made by the learned
counsel for the parties before this court as well. If the
parties were clear about their respective burden and led
their evidence accordingly no prejudice would be caused
even if the burden was not specifically fixed upon any of
the parties while framing of the issues. This is however, not
to say that the concern of the learned District Judge on the
failure of the Trial Court to fix the burden of the issues
framed on the parties asserting was misplaced. Although it
is mandatory for the Trial Court to frame the issues and
important to fix the burden it may be that sometimes the
Trial Court ignores to fix the burden. When in cases, such
as the present one, where in spite of the fact that the Trial
Court has ignored to fix the burden, and parties have led
evidence during the trial and judgment rendered by the
Trial Court it would be important for the Appellate Court to
examine the prejudice caused by the failure. When the
parties during the trial were clear on whom the burden of
proving the material preposition of fact or law lay it would
not be correct for the Appellate Court to remand the matter
and subject them to a de novo trial when clearly no
prejudice was caused to any of the parties. After all it was a
matter of not following a procedure and not an
infringement of a substantive provision of law. 9
C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
11. The second concern of the learned District Judge was
that proper evidence was not placed before the learned
Trial Judge on certain assertion made by the parties. The
record reveals that specific issues have been framed by the
learned Trial Judge on the said assertions and the parties
have laid their evidence. Further the learned Trial Judge
has also rendered her opinion on them. When specific
issues have been framed and the parties are aware that
they are required to establish the material preposition of
fact or law it is incumbent upon them to lead material
evidence before the court. Inadequacy of evidence when
issues are framed would have a direct bearing on the
issues. If an issue has been framed and the burden is fixed
upon the person asserting it then failure to adduce
evidence or lead adequate evidence would have a direct
impact on the fact asserted by the party who is required to
prove it. The only necessity which can be deciphered from
the impugned judgment is the learned District Judge's
inability to decide the appeal due to perceived lack of
evidence on the specific contentions dealt above. If issues
are framed and evidence led, failure to lead evidence will
have its consequences. Remanding the matter for a de novo
trial in such cases may permit the parties to fill up the
lacunae in their case which is not permissible. 10
C.R.P. No. 01 of 2023 Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.
12. None of the above concerns posed by the learned
District Judge, in the facts and circumstances of the case,
necessitates a re-trial.
13. This court is therefore, of the view that the learned
District Judge has incorrectly exercised her power under
Order XLI Rule 23A of the CPC and remanded the matter to
the Trial Court instead of deciding the appeal as per law.
14. Thus the impugned order dated 09.11.2022 is set
aside. The revision petition is allowed. Title Appeal No. 03
of 2020 shall be placed before the learned District Judge
who shall decide the same as per law. Pending interim
application is also disposed of accordingly.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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