1 ao1091-04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.1091 OF 2004 Sakharam Bhairu Banasode (Since deceased through his LR's) Smt. Parubai Sakharam Bansode & Ors. .. Appellants. V/s. Narayan Rama Bansode .. Respondent ..... Mr. Surel S. Shah for the appellants. Mr. Gupte D. M. for the respondent. ..... CORAM : A. S. OKA, J. DATE : MARCH 31, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. The appellants are the original plaintiffs and the respondent is the defendant. A suit was filed by the appellants in respect of an agricultural land more particularly described in paragraph No.1 of the plaint. Prayer was made in the suit for passing a decree for possession in respect of the 2 ao1091-04 suit land. In the suit, a contention of the appellants is that the respondent was unauthorizedly in possession of the suit land as the Authority under Bombay Tenancy and Agricultural Lands Act, 1948 held that there is no landlord tenant relationship between the appellants and the respondent. 2. Respondent filed a written statement. Apart from other contentions, it was contended in the written statement that on 14th July, 1995, the predecessor of the appellants had executed an agreement of sale in respect of the suit land in his favour. It is contended that entire consideration was paid by the respondent to the predecessor of the appellants and the possession of the respondent was confirmed as owner. It is contended that apart from agreement for sale, a lease for the period of 99 years has been executed by the predecessor of the appellants. A counter claim was filed by the respondent. 3. The trial Court framed various issues. The trial Court also framed an issue on the basis of contention of the respondent that predecessor of the appellants had agreed to sell the suit land to him 3 ao1091-04 on 17th July, 1995. Issue No. 6 was of readiness and willingness of the respondent to perform his part of the said agreement for sale. An issue was also framed that as to whether the respondent is a tenant of predecessor of the appellant since 17th February, 1976. The Trial Court decreed the suit and passed a decree for possession against respondent. The trial Court dismissed the counter claim. An Appeal was preferred by the respondent against the decree of the trial Court. It appears that in the said Appeal, an application at Exhibit-25 was made by the respondent for permission to amend the counter-claim for the purposes of incorporating relief of passing a decree of specific performance of the agreement for sale. The application for amendment was allowed and accordingly, respondent was allowed to amend the counter claim. 4. The District Court partly allowed the Appeal preferred by the respondent and passed an order of remand. The District Court in in the impugned Judgment observed that though the respondent had not claimed relief of specific performance, Issue No. 6 and 8 were framed on the readiness and willingness of the respondent and the entitlement of the respondent for decree for specific performance. 4 ao1091-04 The Appellate Court observed that for deciding the added prayer for the decree for specific performance, remand was necessary with liberty to parties to adduce evidence. 5. The learned counsel appearing for the appellants submitted that from what is observed by the Appellate Court in paragraph No. 12 of the Judgment it is clear that the Appellate Court never intended to disturb the findings of the trial Court on all the issues except Issue Nos. 6 and 8 relating to prayer for specific performance made by the respondents. He submitted that in the operative part of the judgment, the entire decree has been set aside. He submitted that the remand was not at all warranted as even the respondent had not applied for leading additional evidence on the basis of amendment to the counter claim. He submitted that the impugned order of remand is illegal. The learned counsel appearing for the respondent supported the order of remand. He submitted that Issue Nos. 6 and 8 were framed though there was no pleading and now, a claim for specific performance has been allowed to be incorporated in the counter claim. He submitted that an opportunity deserves to be granted to lead evidence on amended counter claim. He 5 ao1091-04 submitted that if the respondents succeed in obtaining a decree for specific performance, the decree passed by the trial Court of possession will have to be set aside and that is why by setting aside the impugned Judgment and decree of the trial Court, the District Court has passed an order of remand with which no interference is called for. 6. I have given careful consideration to the submissions. Issue Nos. 6 and 8 framed by the trial Court read thus : “(6) Does the Defendant prove he was and is willing and ready to perform his part of contract? No. (8) Whether the Defendant is entitled for specific performance of contract? No.” 7. When the suit was decided, there was no counter claim made seeking a decree for specific performance and, therefore, there was no occasion to frame the said two issues as the same did not arise on the basis of the pleadings of the parties. It appears from the discussion made by the trial Court that evidence was adduced by the parties on the said issues though there was no prayer for a decree for 6 ao1091-04 specific performance. From what is observed in paragraph No.12 of the impugned Judgment, it appears that the order of remand has been passed as amendment was permitted to the counter claim. The last sentence of paragraph No.12 indicates that the learned District Judge did not intend to disturb the findings on other issues. 8. The Rule 25 of Order XLI of the Code of Civil Procedure, 1908 reads thus : “Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- 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, [within such time as may be fixed by the Appellate Court or extended by it from time to time].” 9. Instead of passing a blanket order of remand, after permitting the appellants to file additional written statement to the counter 7 ao1091-04 claim, the Appellate Court could have exercised the power under Rule 25 of Order XLI of the said Code. By keeping the Appeal pending, the Appellate Court can direct the trial Court to decide an issue which was not framed or to determine any question of fact which appears to the Appellate Court essential for the decision in the Appeal. In my view, the Appellate Court ought to have been permitted the appellants to file additional written statement to the counter claim. Thereafter, the Appellate Court ought to have applied its mind and decided whether any additional issues were required to be framed on the basis of the amended and additional pleadings. If the District Court was of the view that additional issues are required to be framed or that determination of any question of fact was necessary, the District Court could have always called for the findings of the trial Court on the relevant issues. The District Court could have always permitted the parties to lead additional evidence on issue Nos.6 and 8 before the trial Court with a direction to record a finding on the said two issues. In the facts of the case, blanket remand was not at all warranted. Hence, the impugned order will have to be set aside and the Appeal will have to be restored. 8 ao1091-04 10. Hence, I pass the following order : :: O R D E R :: i. The impugned Judgment and order dated 30th September, 2004, is quashed and set aside and Regular Civil Appeal No.116 of 2002 is restored to the file of the District Court. ii. If the appellants have not filed additional written statement to the amended counter claim, the Appellate Court will permit the appellants to do so within a period of four weeks from the date of which the writ of this Judgment is received by the said Court. After the additional written statement, if any, is filed by the appellants, the Appellate Court will consider the question of framing additional issues or recasting of some of the issues which are already framed. iii. After doing the aforesaid exercise, if the Appellate Court is of the view that any additional issue is required 9 ao1091-04 to be framed or recasting of any of the issues is required or any question of fact is required to be determined, the Appellate Court will proceed in accordance with Rule 25 of Order XLI of the Code of Civil Procedure, 1908, by referring the issues to the trial Court and directing the trial Court to record evidence on the said issues and also to record findings on the said issues. iv. The District Court shall decide the Appeal afresh in the light of the directions given by this Court. v. It is made clear that all contentions of the parties on merits of the Appeal are kept open. vii. Appeal From Order is partly allowed on the above terms with no order as to costs. viii. Hearing of the Appeal is expedited. ix. It is clarified that as a result of restoration of the 10 ao1091-04 Appeal, the interim order, if any, operative during the pendency of the Appeal is also restored. JUDGE