1 ao942 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.942 OF 2010 Janardhan Nivrutti Shinde ...Appellant vs. Shrirang Bapu Sinde & Ors. ...Respondents Mr.Vishwanath Talkute for the appellant Mr.Mangesh Patil for the respondent nos.1 to 4 CORAM : A.S.OKA,J. DATE : MARCH 23,2011 JUDGMENT: 1 On 16 th August 2010, this Court issued notice for final disposal at admission stage. The appellant is the original plaintiff and the respondents are the original defendants. The appellant initially filed a suit for perpetual injunction. Later on, the plaint was amended and the prayers for partition and separate possession and other consequential reliefs were incorporated. The suit was contested by the respondents. The trial Court framed six issues on the basis of the pleadings of the parties. Evidence was adduced and the trial Court dismissed the suit. 2 An appeal was preferred by the appellant to the District Court. The respondents purported to file cross objections. By the impugned Judgment and order, the District Court has passed an order of remand. The operative part of the said order reads thus : 1) The appeal and cross objections are allowed by setting aside the judgment and decree under appeal. 2 ao942 2) The matter is remanded to the trial Court for giving reasonable opportunity to both the parties, after framing of the proper issues, to adduce the evidence and then the learned Judge shall decide the suit afresh as per law within two months from the receipt of the R and P. 3) Both the parties shall co-operate the learned trial Court in deciding the suit within two months 4) Both the parties are directed to appear before the trial Court on 7 th July 2010... 3 The learned counsel for the appellant submitted that there was no occasion for the learned Principal District to pass an order of remand. His submission is that there was no prayer made by any of the parties seeking permission to lead additional evidence. He submitted that order of remand was not warranted. The learned counsel for the respondents submitted that no prejudice is caused to both the parties by order of remand. He pointed out that even the appellant has been permitted to adduce additional evidence and therefore, the appellant cannot have any complaint about the order of remand. He submitted that considering the factual matrix of the case, the learned Principal District Judge exercised discretion and passed an order of remand which gives an opportunity to both the parties to adduce additional evidence. After the suit filed by the appellant has been dismissed, the appellant will get an opportunity to adduce evidence and therefore, no interference is called for. 4 I have considered the submissions. It is not in 3 ao942 dispute that none of the parties had made any application for adducing additional evidence by invoking rule 27 of Order XLI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). Perusal of the impugned Judgment shows that the learned counsel for the appellant had made submissions on merits of the appeal by contending that as the fact of partition was admitted, the partition deed could not have been held as inadmissible. A specific contention was raised that the respondents had not adduced any evidence and therefore, adverse inference ought to have been drawn. It appears that the learned counsel for the respondents made an oral prayer for remand and it was submitted that the matter may be remanded by allowing the cross objection. It must be noted here that though the learned counsel for the appellant had addressed the District Court on merits of the appeal, the learned Principal District Judge has not even framed points for determination as required by clause (a) of Rule 31 of Order XLI of the said Code and the only point framed by him is whether the matter needs to be remanded. The main reason for passing the order of remand appears to have been recorded in paragraph 9 of the Judgment. The learned Principal District Judge has observed thus : 9...But in the instance case, admittedly no evidence was adduced by the defendant. Defendant has also not stepped in the box and for such latches, Mr.Kulkarni has submitted that he has misled. One cannot forget that he was represented by the advocate. Therefore, it cannot be and one cannot endorse that even the advocate was misled. Even though that is the fact, ignorance of law, cannot be excused, which is sufficient prima facie to disagree 4 ao942 with the submission. But even then when the matter is in between the two brothers in respect of the property left by the father and one brother has set up the case of the partition and another claiming exclusive title on the basis of the will, then that being the controversial matter, to resolve the controversy, once for all, for maintaining harmony and relations in between the brothers, in my view, it is equitable to remand the matter. By remittance, the plaintiff will also get an opportunity to prove the terms of the so called deed even for the collateral purpose. Likewise, the defendant will get an opportunity to prove his case and there will be no prejudice to any of the parties... In paragraph 10 of the impugned Judgment, the learned Principal District Judge has observed that order of remand is not rule but is an exception. 5 Apart from the fact that there was no application made by the respondents for adducing additional evidence, the powers of the Appellate Court are very wide as evidenced by section 107 of the said Code. Even assuming that a party to the appeal makes application seeking permission to lead additional evidence and a case is made out for leading additional evidence, it is not axiomatic that order of remand must follow. Considering the nature of the additional evidence required to be adduced, in a given case, the Appellate Court may itself record the additional evidence. In a given case, by keeping the appeal pending, the Appellate Court can take recourse to Rule 25 of Order XLI of the said Code and invite a finding of the Trial Court on a particular issue or 5 ao942 issues. 6 Apart from the fact that none of the parties had sought permission to lead additional evidence, it was not established that the respondents were prevented from adducing evidence before the Trial Court. Suffice it to say that the approach of the learned Principal District Judge was completely erroneous and a blanket order of remand appears to have been mechanically passed. 7 The learned counsel for the appellant submitted that the cross objection filed by the respondents was not maintainable. The learned counsel for the respondents submitted that the suit has not been properly valued. His submission is that the respondents may be permitted to apply for permission to lead additional evidence. 8 Suffice it to say that considering the fact that none of the parties had applied for leading additional evidence, the order of remand was completely unwarranted and the same will have to be set aside. As far as Rule 27 of Order XLI of the said Code is concerned, even the respondents in the appeal an take recourse to the said provision and therefore, in the pending appeal, the respondents can always take out appropriate application which is bound to be considered by the Appellate Court in accordance with law. As observed earlier, even if a case is made out for leading additional evidence, in every case the Appellate Court need not pass an order of remand. As indicated earlier apart from passing an order of remand, various options are available to the Appellate Court. Hence Appeal must succeed. 9 Hence, I pass the following order : 6 ao942 i) Impugned order dated 18th June 2010 is quashed and set aside and the Regular Civil Appeal no.195 of 2001 and cross objections therein are restored to the file of the learned Principal District Judge. ii)The parties are directed to appear before the learned Principal District Judge on Monday 25th April 2011 at 11.00 a.m for the purpose of deciding the schedule of hearing the appeal. iii)It will be always open for the parties to take out appropriate applications in the light of the observations made in this Judgment. iv)All contentions of the parties on merits of the appeal and cross objections including the contention regarding maintainability of the cross objections are kept open. v) The learned Principal District Judge shall endeavour to decide the appeal as expeditiously as possible and preferably before the end of October 2011. vi)Appeal is partly allowed in above terms with no order as to costs. vii)Civil application no.1154 of 2010 does not survive and the same is disposed of. viii)The Principal District Judge to act upon an authenticated copy of this order. JUDGE