1 AO NO.164/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.164 of 2011 1. Bhausaheb s/o Hiraman Mokale, Age: 45 years, Occ. Service, r/o. Harsool, Aurangabad. 2. Gautam s/o Hiraman Mokale, Age: 40 years, Occ. Agril., r/o. Harsool, Aurangabad. 3. Anna s/o Hiraman Mokale, Age 38 years, Occ: Agril., r/o. Harsool, Aurangabad. ..APPELLANTS (Original Defendants in Counter claim) VERSUS Laxman s/o Shankar Gaikwad, Age: 65 years, Occ: Pensioner, r/o Kile Arak, Aurangabad. ...RESPONDENT (Original Plaintiff in Counter claim) ... Mr.P.F.Patni, Advocate, for the appellants. Mr. A.D.Kasliwal, Advocate, for respondent (sole). ... CORAM: K.U.CHANDIWAL, J. DATE:NOVEMBER 15th, 2011 *** 2 AO NO.164/2011 PER COURT : 1. Heard both the learned Counsel extensively and finally. 2. The appellant, as the defendant in counter claim, has raised three questions: (a) Whether the learned Judge of the lower appellate Court was right in remanding the matter to the trial Court for filling up the lacunae which is left by the respondent in the pleading as well as in the evidence. (b) When none of the party has prayed for remand of the matter to the trial Court, in that event, whether the learned appellate Court was justified in remanding the matter to the trial Court. (c) When the learned Judge of the lower appellate Court has come to the conclusion that the Respondent (plaintiff in the counter claim) has not described the property as required under Order 7 Rule 3 of Code of Civil Procedure Code, in that event, was he justified in remanding the matter to the trial Court for proper description of the property. 3 AO NO.164/2011 3. The parties are referred to their status in the counter claim as plaintiff and defendant. 4. The appellant (defendant in the counter claim) felt dissatisfied with the judgment and decree passed by the second Joint Civil Judge, Senior Division, Aurangabad, dt.20th July, 2005, in RCS No.146/2002, decreeing counter claim, preferred RCA No.241/2005. 5. The plaintiff in counter claim stated to have purchased 30 Gunthas land on 21.3.1989 by a sale deed of S.No.3 of Harsool, bounded as: East: Land of defendants, West: Aurangabad Jalgaon Road. North: Raosaheb Mamatu Avtade, and towards South: Water tank and land of father of defendants. He stated, defendants have committed encroachment on the area of 22' x 26' bounded as: Towards East: Open space of his land one Chabutara. West : Aurangabad Jalgaon Road. North: Land of Raosaheb (presently Godavari Co.op.Hsg.Society. South: his house and open space. 4 AO NO.164/2011 He claimed possession of this property by counter claim. The defendants in counter claim denied any such encroachment of 22'x26', or purchase of 30 Guntha by plaintiff in 1989. 6. The plaintiff in the counter claim admitted that father of the defendant was owner of the suit land but denied that the defendant is in possession of the suit property as a owner as alleged. The boundaries, as were raised initially in the plaint, of cattle shade, were also disputed. The original plaintiff Bhausaheb (defendant in the counter claim), as could be seen, withdrew suit RCS No.146/2002, however, the counter claim proceeded ahead which, as stated earlier, was decreed and is subject to challenge in the said appeal. 7. The first appellate Court, during the course of hearing of the appeal, found that the description of the property of the plaintiff in counter claim is not correctly indicated with its boundaries as the plaintiff restricted his claim of possession to the extent of 22 x 26 feet area, and not on other area as it was in his possession. The learned first appellate Court observed in paragraph no.14 of judgment of his making such inquiry and as to the boundaries, 5 AO NO.164/2011 which are referred to in the proceedings. 8. It was also recorded, the plaintiff in the counter claim has to establish his case and boundaries of the said property to ascertain its location. The learned first appellate Court also noted infirmity in exhibiting documents, even unregistered sale deed was exhibited. He analyzed the situation and directed remand of the matter. He also further directed the trial Judge to entertain an application for amendment of the counter claim, and allowed the plaintiff in the counter claim to amend the counter claim for correct description. 9. Learned Counsel for the appellant in the Appeal from Order, as stated earlier, has raised afore-referred three points, and to substantiate his contention, has relied on the judgments of the Supreme Court, as to in which contingencies the orders of remand are to be recorded and how it is to be done. 10. The reference is made to the judgments in the matters of J.Lingaiah and others Vs. G.Hanumanthappa and others ( (2001) 10 SCC 751), then to the judgment in the matter of Hameed V. Kummottummal Kunhi P.P.Amma ((2007) 15 SCC 155), which basically envisage the jurisdiction of remand exercised by the High Court, and the 6 AO NO.164/2011 Supreme Court found, there was no such consideration before the High Court to remand the matter and High Court did not deal and dwell upon the situation on merits. The Supreme Court recorded, such exercise by the High Court is impermissible. The High Court should not have remanded the matter with liberty to produce the documents in order to fill in the lacunae in the evidence. 11. The judgment in the matter of P.Purushottam Reddy and another v. M/s Pratap Steels Ltd. (AIR 2002 SC 771), again contemplates a situation of remand in a suit for specific performance of agreement of sale. The trial Judge had recorded findings on all the issues. In appeal before the High Court, there was no grievance of any prejudice at the trial for want of any issue or specific issue. No such plea was raised, however, High Court in the appeal, after recording findings on the issue again remanded the matter to the trial Court and the Hon’ble Supreme Court did not approve of such exercise of remand by the High Court. 12. Thus, the sum and substance of the reported judgment is: the powers exercised by the High Court in terms of Order 41 Rule 23 or Rule 23-A of C.P.C., was not fitting in, in the legal position as the High Court, in respective 7 AO NO.164/2011 matters, did not venture to record a finding, and simply took recourse of remanding the matter. 13. To revert back to the case at hand, the learned District Judge has analyzed the situation, found that the description of the property, as was expected of the plaintiff in the counter claim, to have been correctly referred, is missing. Unregistered sale deed was exhibited and relied on, without dealing with its legal ramifications. The general description, which was in the original plaint of RCS No. 146/2002, was indicated and, consequently, the learned first appellate Court found that such mistake that has crept in the matter, needs correction. 14. Mr.Patni submits that such exercise of the learned first appellate Court is foreign to the settled legal position. Procedure under Order 41 Rule 23 of the Code of Civil Procedure, was to be adhered to by the learned Judge. He also submits, appellant has already raised this point, while dealing with the pleadings in the counter claim. Though the appellant had, well in advance, informed to this effect but, the plaintiff in the counter claim did not carry such correction. 8 AO NO.164/2011 15. Learned Counsel also criticized to the direction of the learned first appellate Court in clause 3 of the order, for amendment and to hear the matter on amendment. This, according to him, is prohibited in law and, for that purpose, he has relied to the judgment in the matter of Siri Chand Prasad and others V. Lakshmi Singh and others (Placitum B) (AIR 1969 Patna 107 (V.56 C 29) (Placitum B) of the Patna High Court. Learned Judge of the Patna High Court held, suo motu amendment need not be allowed by the Court as it is for the parties to make an application and, thereafter only, the amendment should have been entertained. 16. I find substance in the contention, to the extent of the error of learned first appellate Court in clause 3 of his order under challenge. He should have refrained from giving such directions; to direct the plaintiff in the counter claim to carry the amendment and ask the trial Judge to hear the parties. It was clear, neither before the first appellate nor before the trial Judge there was any amendment application and the defendant (appellant herein) could not visualize, what was the nature of the amendment sought in the pleadings. The order of remand in the situation, was requirement by situation and was not a caprice. 9 AO NO.164/2011 With all said and done, though these observations or the directions of the learned first appellate Court are not fitting in, in the correct legal position, however, the subsequent events in the matter boils down to a situation - to ignore the error as it does not distort the case or squeeze rights of defendants (appellants). 17. The development in the matter has been narrated by the respondent Laxman. The appearance was to be reported before the learned trial Judge on 27th Jan.,2011. However, the appellant appeared on 17th Feb.,2011. Thereafter, the application below Exh.102 was moved in the counter claim by the respondent in the appeal and reply was filed by the appellant. After hearing, said application was allowed and the amendment was effected pursuant to the order dt.21.3.2011. Thereafter, the matter was adjourned to 29.3.2011 for filing written statement by the appellant, however, the appellant moved applications below Exhs.106, 107, 108, 109, 110, seeking time to file written statement and, as could be seen, protracted the matter. Ultimately, below Exh.111, on 26.3.2011, the appellant moved application again seeking time for filing written statement. At that time, the appellant has informed of filing the proceedings before this Court. 10 AO NO.164/2011 18. It is informed by the respondent that on 12.7.2011, the appellants have filed their written statement, issues are framed on 14th July, 2011 and on 18.7.2011, the respondent has tendered his affidavit in the form of examination in chief and, thereafter, the matter is adjourned to 28.7.2011, 9.8.2011, 17.8.2011. However, the appellants have not cross examined the respondents or the affiant. 19. Again, the basic feature in the matter is, there was a decree in favour of the respondent. By virtue of effects in the appeal, the decree is set aside and the matter is remanded by the learned Judge. The remand, as stated earlier, is for allowing the respondent to carry amendment, to give correct description of the property and about evidence relating to sale deed. The approach of the first appellate Court certainly was to advance substantial justice between the parties as there was inaccurate description or it was not figuring the correct situation. Taking these aspects into consideration, the points as raised by the appellant herein, to be substantial question of law, need to be answered against Respondent. There was no error on the part of the first appellate Court in remanding the matter to the trial Court as it did not mean to fill up any 11 AO NO.164/2011 lacunae which was allegedly left by the respondent. It was not a wedge deliberately created, it was sheer mistake. Giving correct identity of property would not be disadvantageous to the appellant. The matter was envisaged which demanded remand. The learned Judge could do so in terms of Order 41 Rule 23 of Code of Civil Procedure. In the result, the order of the first appellate Court does not call for interference. Appeal from Order with Civil Application (No. 6343/2011) is dismissed. No costs. (K.U.CHANDIWAL) JUDGE agp/164-11ao