S.A.O.No.41 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-10.08.2010 Ved Pal and others ...Appellants Versus Tek Ram son of Fateh Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Raj Kumar Gupta, Advocate for the appellants. Mr.Ranjan Lohan, Advocate for the respondent. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, relevant for a limited purpose of deciding the core controversy involved in the instant appeal and emanating from the record, is that originally, Tek Ram son of Fateh Singh respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration and joint possession to the effect that the collusive decree dated 30.10.1981 passed in civil suit No.443 of 1981 titled as “Ved Pal Vs. Deva Singh” and the decree dated 9.12.1986 passed in civil suit No.862 of 1986 titled as “Ramdia vs. Mano etc.” are illegal, null, void, result of fraud, mis-representation and concealment of facts. They are still owners and in joint possession to the extent of 1/6th share in the land in dispute, with a consequential relief of permanent injunction restraining Ved Pal, Ram Dia and their father Sawaiya Ram appellant-defendants (hereinafter to be referred as “the defendants”) from alienating it in any manner. 2. Concisely, the plaintiff claimed that although he is entitled to inherit the estate of Deva Singh to the extent of his share, but he came to know that the entire land left by Deva Singh was recorded in the ownership of the defendants on the basis of the indicated collusive decrees and mutations thereof. The decrees and mutations were stated to be illegal, null, void and inoperative on the rights of the plaintiff on the grounds depicted in the plaint. On the basis of aforesaid S.A.O.No.41 of 2009 2 allegations, the plaintiff filed the suit seeking a decree for declaration and permanent injunction against the defendants in the manner described here-in- above. 3. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit and locus standi of the plaintiff etc. According to the defendants, the plaintiff had separated his mess in the year 1972 and since then, he is living separately, whereas Deva Singh (deceased) was living jointly with the defendants. A family settlement was arrived at between defendants No.1 and 2 and Deva Singh. On the basis of family settlement, the collusive decrees were rightly suffered. The defendants termed the impugned decrees as legal and binding on the rights of the parties. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiff is entitled for a decree for declaration with joint possession to the effect that decree dated 30.10.1981 and 9.12.1986 are illegal, null and void and same be set aside on the grounds mentioned in the plant?OPP 2. Whether the plaintiff is entitled for a decree for permanent injunction restraining the defendants from alienating the suit property?OPP 3. Whether the suit of the plaintiff is not maintainable?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the civil court has got no jurisdiction to entertain and try the present suit?OPD 6. Relief. S.A.O.No.41 of 2009 3 5. The parties to the litigation, brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 6. Taking into consideration the entire evidence on record, issue Nos.1 and 2 were decided against the plaintiff, while issue Nos.3 to 5 were answered against the defendants. Consequently, the suit filed by the plaintiff was dismissed by the trial Court, by virtue of judgment and decree dated 20.3.2007. 7. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal alongwith an application for producing birth certificate of defendant No.1 as additional evidence under Order 41 Rule 27 read with section 151 CPC. The Ist appellate Court allowed the production of birth certificate of Ved Pal as an additional evidence, set aside the judgment and decree and remanded back the case to the trial Court, vide impugned judgment dated 4.6.2009. 8. The appellant-defendants did not feel satisfied with the impugned judgment of Ist appellate Court and filed the present appeal. That is how, I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to me, as the judgment of the Ist appellate Court cannot legally be sustained, therefore, the instant appeal deserves to be accepted. 10. As is evident from the record that the plaintiff filed the suit for a decree of declaration with consequential relief of permanent injunction against the defendants. Having completed all the codal formalities, the trial Court decided the case on merits, but strange enough, the Ist appellate Court allowed the production of birth certificate of Ved Pal defendant No.1 by way of additional evidence, set aside the judgment and decree and remanded the case to the trial Court in a routine fashion. 11. Such thus being the position on record, now the short and significant question, though important, that arises for determination in this appeal, is as to S.A.O.No.41 of 2009 4 whether the first appellate Court was legally justified in remitting the case to the trial Court or not? 12. Having regard to the rival contentions of the learned counsel for the parties, relatable to the material on record, to my mind, the Ist appellate Court has just bye-passed the legal provisions, with impunity and committed a legal error in this respect. 13. As is clear from the record, in the instant case, the first appellate Court has set aside the judgment and decree and, mainly, remanded the case to the trial Court to produce the birth certificate of Ved Pal defendant No.1 by way of additional evidence. 14. It is not a matter of dispute that the trial Court has decided the case on merits by taking all the relevant issues. In such a situation, the matter can only be remanded to the trial Court under the provisions of Order 41 Rule 25 CPC, which postulates that “where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.” Rule 24 CPC further posits that “where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” 15. Meaning thereby, the Ist appellate Court can remand the case to the trial Court only in the event, if that squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on S.A.O.No.41 of 2009 5 record, then it was the statutory duty of the Ist Appellate Court to decide the case on merits, as contemplated under Rule 24 CPC. It cannot straightway rush to Rule 25 CPC to make an order of remand. The order of remand can only be made, where the trial Court has omitted to frame or try any issue, or to determine any question of fact essential to right decision of the suit. The provision of Rule 25 CPC is only to be invoked, where an issue should be framed for proper decision of the suit, but was not framed by the trial Court. The provisions of remand cannot be invoked to enable the parties to have a second innings with a view to fill up the lacuna in the pleadings or evidence, as the case may be. The Appellate Courts should extremely be slow to exercise the jurisdiction of remand, as envisaged under Rule 25 CPC, otherwise there would be no end to the litigation and the people would lose faith in the judicial system. 16. In this manner, in the event of allowing additional evidence under Order 41 Rule Rule 27 CPC, then two courses were open to the first appellate Court, as envisaged under Rule 28 CPC, which escalates that “wherever additional evidence is allowed to be produced (i) the Appellate Court may either take such evidence (ii) 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 without setting aside the judgment and decree of the trial Court.” Having complied with the provisions of Rule 28 CPC, then the first appellate Court was legally required to work out the legal consequences and ought to have decided the matter on merits itself, instead of sending the case back to the trial Court. There is no legal bar in deciding the appeal on merits by the first Appellate Court itself after production of additional evidence in this regard. The order of remand cannot possibly be passed in a routine manner just in order to indicate the disposal of the appeals, without any legal basis. 17. Thus, seen from any angle, as the impugned judgment of remand is not in consonance with the statutory provisions of Order 41 Rules 24, 25 and 28 S.A.O.No.41 of 2009 6 CPC, therefore, the impugned judgment deserves to be set aside in the obtaining circumstances of the case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing, the instant appeal is hereby accepted. The impugned order dated 04.06.2009 is set aside and the matter is sent back to the first appellate Court to decide the appeal on merits, in accordance with law. The parties through their counsel are directed to appear before the first appellate Court on 21.09.2010. (Mehinder Singh Sullar) 10.08.2010 Judge AS S.A.O.No.41 of 2009 7