IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.136 of 2009 BIJAY SHANKAR SINGH S/O Late Ram Prasad Singh @ Ram Prasad Ram, R/O Mohalla- Bekapur, P.S.- Kotwali, P.O.-Munger, District- Munger. ………Plaintiff-Appellant-Appellant. Versus KRISHNA MURARI PRASAD S/O Late Jagarnath Ram, R/O Mohalla- Bekapur, P.S.- Kotwali, P.O.- Munger, District- Munger. ………Defendant-Respondent-Respondent ------------- For the Appellant:- Mr. Harshbardhan Sahay, Advocate. For the Respondent:- Mr. Arvind Kumar, Advocate. 04. 07.07.2010 Heard learned counsel for the appellant and respondent, who gave their consent to decide the appeal on merit. This appeal has been preferred against order dated 19th December, 2008 passed in Title Appeal No. 58 of 2004, remitting the matter for fresh decision by the trial Court, after framing particular issue with respect to plea of adverse possession. It appears that vide order dated 23.04.2010, direction was given to the appellant to file supplementary affidavit, annexing the judgment passed by the trial Court but it is not done. The learned counsel for the appellant submits since by same order record of the lower appellate Court and trial Court was also called for under some misconception the copy of the judgment of the trial Court could not be furnished. It is contended by learned counsel for the appellant that before remanding the case the lower appellate Court must have arrived by a reasoned order as regard to the necessity to remand and must have given definite finding with respect to other issues involved on - 2 - consideration of evidences on record. On the other hand, learned counsel for the defendant- respondent submits that court below has given reason for remand, it was not at all required to give findings on other issues else the very purpose of remanding the suit for decision after framing the particular issue could have frustrated. As it appears from the rival submissions and judgment of the court below that plaintiff-appellant had filed the suit for declaration of title and eviction of defendant besides arrears of rent. Earlier, plaintiff also issued notice to defendant; in reply whereof he by denying relationship of landlord and tenant asserted his own title by adverse possession being remain in possession of the suit property for last seventy years since time of his father. Perhaps this was the reason behind filing of the suit for declaration of title/ownership besides relief for eviction and arrears of rent. The lower appellate Court has simply referred the number of witnesses examined and documentary evidence by way of Exhibits, but without discussing their relevancies and also sufficiency to deciding the plea of adverse possession which according to the lower appellate Court was essential for determination just because no such issue relating to adverse possession was directly framed, pass order of remand. As pointed out by the Bar, Issue No. 4 “Whether the plaintiff has got title and possession within 12 years of the filing of the suit over the suit property”, though not properly drafted but was - 3 - sufficient to indicate the parties that question of adverse possession is also directly or indirectly involved in the suit and one finding is required thereon. Remand of the cases is exceptional and Law is clear on this point that ordinarily the appellate Courts are to decide the issues involved between the parties on the materials available in appeal, unless in spite of all the efforts the appellate Courts finds itself not in a position to arrive at any definite conclusion, in this regard decision of Madras High Court in a case Balasubramania Iyer, Appellant Vs. Subbiah Thevar and another, Respondents, reported in AIR 1965, Madras, 417 is relevant where in Para- 9 of the judgment reads as such:- (9)- “The Powers of an appellate court to pass an order of remand and to send the case back for trial is well settled. Under Order 41 Rule 23 C.P.C. the appellate court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the appellate court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial court. It has been repeatedly pointed out by this court that this power of remand ought not to be lightly exercised by the appellate court, where it has failed to discharge its own duty of disposing of the appeal on merits. Frequent instances are coming to the notice of this court in which orders of remand are passed under O. XLI Rule 23 C.P.C. indiscriminately even - 4 - though the requirements of law were not satisfied at all. If the trial court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the appellate court can remand the suit for a fresh trial. The fact that there are some defects and infirmities in the reasoning of the trial court is surely not a ground for the appellate court not to do its duty of disposing of the appeal on merits. The appellate court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial court are correct and if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial court. The tendency on the part of the appellate court to remand a suit on slender grounds cannot but be strongly deprecated”. Here in this context, subsequent decision of the Apex Court - 5 - in a case of Ashwinkumar K.Patel, Appellant Vs. Upendra J.Patel and others, Respondents, reported in A.I.R. 1999, Supreme Court, 1125 is also relevant, where in Para-7, the Apex Court has said as follows:- (7)- “In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters Involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary”.. Taking into consideration, all such aspects and findings of the court below, it appears that the lower appellate court before passing order of remand should have taken care of deciding the appeal - 6 - on its merits first on the basis of materials available on record and only after arriving at a definite conclusion that order of remand is extremely essential, such order could have been passed. In view of the above order of the lower appellate Court is hereby set aside and the matter is remitted to the court below for deciding the appeal in the light of observations made above, preferably within three months of receipt of copy of this order as well as record of the lower appellate Court, office is directed to at once transmit Lower Court Records along with copy of this order to the court below. The parties are directed to appear before the lower appellate Court on 16th August, 2010. Praveen (Akhilesh Chandra,J.)