IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(Ord.) No. 449 of 2008. Judgment Reserved on January 2, 2010. Date of decision: 5.1.2010. Shri Bodh Raj ….Petitioner-Defendant No. 1. Versus Prem Chand and others ..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. V.S.Rathore, Advocate. For respondents 1,3 and 4 Mr. Ajay Sharma, Advocate. For respondent No. 8. Mr. R.K.Bawa, Advocate General, with Ms. Ruma Kaushik, Addl. AG. Dev Darshan Sud, J. This appeal has been filed by the petitioner- defendant No. 1 against the judgment of the learned Additional District Judge (I), Kangra at Dharmasala allowing application under Order 6 Rule 17 of the Code of Civil Procedure preferred by the plaintiff and remanding the case for decision afresh. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Plaintiffs Prem Chand, Jai Chand, Ranjit Singh and Munshi Ram instituted a suit in the Court of Civil Judge (Junior Division) (I), Kangra at Dharamsala praying for a decree of permanent prohibitory and mandatory injunction on the averments as made in the plaint. After settlement of issues and trial, the learned Court dismissed the suit of the plaintiffs. Plaintiffs preferred an appeal before the learned Additional District Judge and during the pendency of the appeal, they filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the plaint to claim an easementary right of prescription for passage on the suit land. The Court allowed the application and as a consequence, set aside the judgment and decree and remanded the case to the trial Court for decision afresh in accordance with law. Liberty to file amended written statement was granted to the defendants. Defendant No. 1 has challenged the legality of this order. I have heard the learned counsel for the parties. Learned counsel for the appellant submits that the order of wholesale remand cannot be sustained. He urges that amendment allowed was not in accordance with the settled - 3 - principles of law and the subsequent remand thereto is illegal. On the first aspect, no fault can be found with the order of the appellate Court. On the second point, that is that wholesale remand is to be avoided, it is now well settled by a number of decisions that remand should not be the normal rule. In Bechan Pandey and others v. Dulhin Janki Devi and others, (1976) (2) SCC 286, the Supreme Court holds: “9….To remand the suit to the trial Court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial Court and thereafter in appeal. It is time, in our opinion, that we draw the final curtain and put an end to this long meandering course of litigation between the parties. If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead. To do so would in effect be defying the laws of nature and offering a - 4 - futile resistance to the revage of time. If human life has a short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. The Courts should be loath to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation. In M.J.Thomas and others v. State of Kerala and another, AIR 1998 Kerala 285, the Kerala High Court also reiterates this principle holding: “20…..An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. There should always be an endeavour to dispose of the case by the Appellate Court itself ….” In P. Purushottam Reddy and another v. Pratap Steels Ltd., (2002) 2 SCC 686, the Court again added another word of caution holding that: “10…..To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the - 5 - 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 send 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.” (emphasis supplied) This Court in Devki Nand v. Jai Kishan, 2008 (1) Cur. L.J. (H.P.) 26, holds: “9. The District Judge, however, has recorded a finding that amendment in no way has changed the nature of the suit. The amendment applied for was nothing but additional approach to the same facts. In other words as per District Judge, no new plea has been taken by way of amendment by plaintiff. The District Judge, has not recorded a finding that new issues emerge from amendment of plaint. There is no finding that amendment of the plaint requires further evidence. - 6 - 10. The District Judge without recording specific reasons for retrial of the suit has remanded the suit after accepting the appeal. The minimum required from the lower appellate Court was to consider and record a finding whether new issues emerge after amendment and whether further evidence is required in view of amendment. In absence of such finding, reasons, the District Judge has erred in remanding the suit for retrial to the trial Court. The mere reproduction of statutory provision by District Judge in remand order that ‘retrial’ is necessary is not sufficient for ordering open remand. The basis and reasons for retrial are to be recorded in the judgment of remand. Therefore, while upholding the impugned judgment to the extent allowing amendment application, the remaining judgment dated 7.7.2001 remanding the case to trial Court is set aside with a direction to the District Judge to decide the appeal afresh, however, if he comes - 7 - to the conclusion that further evidence is required in view of the amendment of the plaint, then he may either record the evidence himself or through the trial Court. It is, however, made clear that District Judge shall decide the appeal himself in accordance with law.” Adverting to the facts of the present case, having allowed the application for amendment, the proper course for the appellate Court was to have ordered the parties to complete their respective pleadings, that is to say that written statement to the amended plaint should have been taken on record of the case and thereafter issue(s) settled on the pleadings. The entire judgment and decree could not have been set aside. After framing additional issue(s), the appellate Court should have either called for findings on these issue(s) from the trial Court or it should have itself proceeded to record evidence and then decide the appeal. Wholesale remand should have been avoided, as it only protracts litigation. The powers of remand are to be exercised strictly within the parameters of Order 41 Rules 23, 24-A and 25 of - 8 - the Code of Civil Procedure and not as a matter of convenience. This appeal is accordingly allowed with the following directions: 1, The order of remand is quashed and set aside. 2, The order of amendment of the plaint is upheld. The learned Appellate Court shall readmit the case on its record and grant an opportunity to the defendants to file their written statement to the amended plaint. After that, additional issue(s) should be framed on the pleadings of the parties. 3, Parties shall be given an opportunity to lead evidence on the additional issue(s). The appellate Court shall itself record such evidence. However, if it finds that this is not feasible to do so, a direction shall be issued to the trial Court to the effect that findings on the issue be recorded for which opportunity shall be given to both the parties to lead evidence. The appellate Court shall thereafter proceed to decide the issue(s) and dispose of the appeal in accordance with law. 4, It is clarified that no evidence other than the one on the additional issue(s) shall be admitted. - 9 - The appeal is disposed of accordingly. All pending application(s) shall stand disposed of. Parties shall appear before the appellate Court on 25.2.2010. Record be sent back immediately. January 5, 2010(PC). (Dev Darshan Sud), J.