S.A.O.No.28 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-31.8.2010 Ram Kumar and others ...Appellants Versus Sanjeev Kumar and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.C.L.Verma, Advocate for the appellants. Nemo for the respondents. M ehinder S ingh S ullar , J . The compendium 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 Sanjeev Kumar minor adopted son of late Mool Raj respondent- No.1-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration to the effect that the sale deed dated 19.4.1993 (Ex.P5) executed by Ramesh Chand son of Bajurgu-defendant No.3 in favour of Ram Kumar son of Basant Ram and Rajinder Pal son of Ram Lal-appellant defendant Nos.1 and 2 and subsequent sale deed dated 14.2.1995 (Ex.P6) executed by them in favour of Kulwinder Kaur wife of Harnam Singh appellant No.3-defendant No.4 (hereinafter to be referred as “the defendants”) are illegal, null, void and not binding on his (plaintiff) rights, with a consequential relief of permanent injunction restraining defendant No.4 from alienating in any manner and raising any construction over the suit property. The plaintiff filed the suit as a minor, but during its pendency, he attained the majority and prosecuted the case and filed the amended plaint in the capacity of major. 2. The case set up by the plaintiff, in brief, in so far as relevant, was that original owner Bajurgu had four sons, namely, Ved Parkash, Mool Raj, Satanjiv and Ramesh Chand. As Mool Raj was unmarried, therefore, he had S.A.O.No.28 of 2002 2 adopted the plaintiff as his son, vide adoption deed dated 21.6.1983. After his death, the plaintiff succeeded and inherited the property in dispute of his adopted father Mool Raj and became its sole owner. The plaintiff claimed that defendant No.3 has illegally sold the suit land to defendant Nos.1 and 2, vide registered sale deed (Ex.P5) and they further sold it to defendant No.4, vide registered sale deed (Ex.P6) without any legal right. 3. Concisely, according to the plaintiff, he is the owner, but the defendants have alienated the suit property, vide two indicated sale deeds in the manner described here-in-above without any alienable right. On the basis of aforesaid allegations, the plaintiff filed the suit seeking a decree for declaration and permanent injunction against the defendants in the manner detailed here-in- above. 4. The contesting defendants resisted the suit. Defendant Nos.1 and 2 filed their joint written statement, while defendant No.4 filed her separate written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; locus standi & cause of action of the plaintiff, collusion of plaintiff with defendant No.3-vendor and one Kishan Chand. On merits, it was claimed that they have purchased the disputed property from its owner Ramesh Chand defendant No.3, who is none else, but brother of Mool Raj, father of the plaintiff. Succinctly, according to contesting defendant Nos.1 and 2, they were and now defendant No.4 is the owner and in possession of the property in dispute as bonafide purchaser for valuable consideration. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. It may be added that defendant No.3 toed the line of pleadings of the plaint. 5. 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 S.A.O.No.28 of 2002 3 adjudication of the case:- 1. Whether the plaintiff inherited and succeeded to the disputed property left behind by Mul Raj and as such became its owner as alleged?OPP 2. Whether the impugned sale deeds dated 19.4.93 and 14.2.95 are illegal and null and void and as such inoperative against the plaintiff qua the suit property?OPP 3. Is plaintiff entitled to the relief of a declaration as claimed through this suit?OPP 4. Whether pltiff. is also entitled to the relief of a permanent prohibitory injunction as claimed through this suit against deft.No.4?OPP 5. Whether the pltiff. has no locus standi nor any cause of action to file this suit?OPD 6. Is this suit not maintainable?OPD 7. Whether this suit has been filed by the pltff. in collusion with deft.No.3? If so to what effect?OPD 8. Is plaintiff estopped by bringing this suit through his act and conduct, as alleged?OPD 8A.Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD 8B Whether the defendants No.1,2 & 4 are bonafide purchaser of the suit land for valuable consideration?OPD 9. Relief. 6. In order to prove their pleaded cases, both the parties to the litigation brought on record the oral as well as the documentary evidence. 7. Taking into consideration the evidence on record, the trial Court decided issue Nos.1 to 4 against the plaintiff, while issue Nos.7 and 8A were answered in favour of the defendants. As the remaining issues were not pressed at the time of arguments, therefore, the same were decided against the defendants. On ultimate analysis of evidence on record and in view of findings on various issues, the trial Court dismissed the suit of the plaintiff, by virtue of judgment and decree dated 3.9.1998. 8. Aggrieved by the judgment and decree of the trial Court, the plaintiff S.A.O.No.28 of 2002 4 filed the appeal alongwith an application for additional evidence to prove the Will dated 24.9.1980 executed by Bajurgu. The first appellate Court accepted the appeal and application for additional evidence, set aside the judgment and decree and remanded the case back to the trial Court for its fresh decision, vide impugned judgment dated 15.4.2002. 9. The appellant-defendants did not feel satisfied with the impugned judgment of the first appellate Court and filed the present appeal. That is how, I am seized of the matter. 10. Having heard the learned counsel for the appellant-defendants, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, as the impugned judgment of first appellate Court cannot legally be maintained, therefore, the instant appeal deserves to be accepted, for the reasons mentioned here-in-below. 11. The bare perusal of the record would reveal that the plaintiff filed the suit for a decree of declaration with a consequential relief of permanent injunction against the defendants in the manner indicated here-in-above. Having completed all the codal formalities, the trial Court decided the case on merits by taking all the issues, but strange enough, the first appellate Court allowed the production of Will dated 24.9.1980, without any pleading in this respect, as additional evidence, set aside the judgment and decree and remanded the case back to the trial court for its fresh decision in a routine manner, vide impugned judgment, the operative part of which is as under:- “The application of the appellant for permission to lead additional evidence to prove the Will dated 24.9.1980 of Bajurgu is ordered to be allowed subject to costs of Rs.1,000/-. The judgment and decree under appeal are accordingly set aside and the case is remanded back to the trial Court for fresh decision after allowing the plaintiff-appellant to lead evidence regarding execution of the Will dated 24.9.1980 by Bajurgu. The appeal is accordingly allowed, with no order as to costs.” S.A.O.No.28 of 2002 5 12. Above being the position on record, now the sole question, though important, that arises for determination in this appeal, is as to whether the first appellate Court was legally justified in remitting the case back to the trial Court or not? 13. After considering the contentions of the learned counsel for the appellant-defendants, relatable to the record of the case, to me, the first appellate Court fell in legal error in this relevant connection. 14. As is evident from the record that the trial Court decided the case on merits by discussing all the 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, frame issues, and refer the same for trial to the Court from whose decree 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 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 first appellate Court can remand the case to the trial Court only in the circumstances, which squarely fall within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on 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 S.A.O.No.28 of 2002 6 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 the 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. 16. As is clear from the record that the Ist Appellate Court allowed the appeal and application for leading additional evidence, set aside the judgment and decree of the trial Court and remanded the case back to the trial Court. Once the Ist appellate Court has allowed the additional evidence as envisaged under Rule 27 CPC, then two courses were open to it, as envisaged under Order 41 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.” 17. 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 fashion just in order to indicate the disposal of the appeal, without any legal basis. It was held by this Court in case Gangi v. Gian Kaur and others 1990 P.L.J. 228 that “the appellate Court cannot make an order of remand without coming to a conclusion that the decision of the trial Court is wrong and that it is necessary to reverse or set aside the judgment and decree.” The law laid down by this Court in Gangi's case (supra), S.A.O.No.28 of 2002 7 SAO No.18 of 2004 titled as “Surinder Kaur and others vs. Didar Singh” and S.A.O.No.41 of 2009 titled as “Ved Pal and others Vs. Tek Ram” decided on 10.08.2010 “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Therefore, the decision of remand is not in consonance with the statutory provisions of Order 41 Rules 24, 25 and 28 CPC and the impugned judgment of Ist Appellate Court 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 appellant-defendants. 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 judgment dated 15.4.2002 is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law. 20. The appellants through their counsel are directed to appear before the first appellate Court on 6.10.2010. (Mehinder Singh Sullar) 31.8.2010 Judge AS