ao15.06 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 15 OF 2006 Shri Babu Gulal Patil Deceased through LRs 1-A Smt. kashibai Babu Patil age 82 years, occ. household r/o Patode, Tq. & Dist. Nandurbar. 1-B Ashok Bapu Patil age 50 years, occ. Agril r/o as above. 1-C Dilip Babu Patil age 43 years, occ. agril r/o as above. 1-D Kokilabai Damu Patil age 60 years, occ. household r/o Umarkheda, Tq. shahada Dist. Nadurbar at present c/o D.F. Patil New York city U.S.A. 1-E Latabai Eknath Patil age 45 years, occ. household r/o Lonkheda, Tq. & Dist. Nandurbar. 1-F Sau. Sunita Manak Patel age 29 years, occ. household r/o Padalde, Tq. Shahada, Dist. Nandurbar ao15.06 2 1-G Anita Kundal Patel age 27 years, occ. household Datta Colony, Nandurbar Dist. Nandurbar .. APPELLANTS VERSUS Namdeo Laxman Chaudhari age 57 years, occ. agriculturist r/o Patonda, Tq & Dist. Nandurbar .. RESPONDENT Mr. A.N. Sabnis, advocate holding for Mr. Sanjay Mundhe, advocate for the appellants. Mr. S.V. Natu, advocate holding for Mr. C.R. Deshpande, advocate for the respondent. ===== CORAM : R.M. BORDE, J. DATE : 28 th APRIL, 2011. ORAL ORDER : 1 Appellant / original plaintiff is challenging the judgment and decree passed by the Ad-hod Additional District Judge, Nandurbar on 16-1-2003 in Regular Civil Appeal no. 36/2000. The appellate court while allowing the appeal remitted the matter back to the Civil Judge, Sr.Dn., Nandurbar with a direction to accept the counter claim presented by defendant and also to permit him to deposit requisite court fees. The Civil Judge, Sr.Dn., Nandurbar was further directed to permit the plaintiff to file his written statement to the ao15.06 3 counter claim presented by the defendant. On consideration of the case put up by the respective parties, the trial court was directed to dispose of the suit in accordance with the provisions of law, within six months from the date of the judgment. 2 Appellant / original plaintiff instituted Regular Civil Suit no. 71/1994 which was heard and disposed of by the II Jt. civil Judge, Jr.Dn., Nandurbar. Plaintiff claimed a decree of redemption of mortgage against the defendant and also sought direction that he be put in possession of the suit property. Dispute relates to land survey no. 58 admeasuring 5 H and 17 R situate at village Waghode, Tq. Nandurbar. According to plaintiff, mortgage transaction was entered into with defendant on 17-6-1980. Plaintiff is the mortgagee whereas defendant is mortgagor. Mortgage amount was to the tune of Rs.15,000/-. It was agreed between the parties that on payment of aforesaid amount within a period of five years, the plaintiff would be put in possession of the suit property. Possession of the disputed property was handed over on the date of execution of the mortgage deed i.e. 7-6-1980. Thus, according to the plaintiff, the transaction is mortgage by conditional sale. It is further contended by plaintiff that he requested the defendant to ao15.06 4 accept an amount of Rs.15,000/- for releasing the property, however, defendant refused to do so. As such, plaintiff was constrained to file the suit. 3 Defence of the defendant is of denial. According to defendant, the transaction entered into between the parties is a conditional sale with a stipulation of re-purchase of the property on payment of amount of Rs.15,000/- within a period of five years from the date of the transaction. It is also further contended by defendant that he has paid an amount of Rs.1,40,000/- from time to time till 6-4-1989. It is alternatively contended by defendant that on payment of an amount of Rs.1,55,000/- only the plaintiff shall have entitlement to ask for possession of the property. Separate agreement, according to the defendant, has taken place with plaintiff in that regard. Defendant, thus raises counter claim in respect of amount of Rs.1,40,000/- and expressed his willingness to pay the additional court fees. Trial court, however, rejected the counter claim on the ground that the valuation of the counter claim is beyond the pecuniary limit of the court in respect of entertainment of the suit. There was no challenge raised to the order passed by the trial court in respect of refusal to register the counter claim. Trial court proceeded to frame issues and after recording evidence ao15.06 5 of the parties, by judgment and decree dated 11-9-2000 was pleased to decree the suit presented by plaintiff. Defendant was directed by the trial court to execute sale-deed in favour of plaintiff on accepting an amount of Rs.15,000/- within one month from the date of the judgment. It was also further directed that in the event of failure of defendant to accept the amount and to execute the sale-deed, plaintiff was granted liberty to deposit the amount of Rs.15,000/- in the court within one month from the date of refusal by defendant. In such eventualities, further direction was issued to get the sale-deed executed through the court. Defendant was directed to handover possession of the suit land to the plaintiff on the date of execution of the sale-deed in favour of the plaintiff. 4 Judgment and decree passed by the trial court was subjected to challenge by the defendant in Regular Civil Appeal no. 36/2000. As recorded above, appellate court allowed the appeal and remitted the matter back to the Civil Judge, Sr.Dn., Nandurbar for consideration. 5 Substantial questions of law those arise for consideration in this appeal are :- ao15.06 6 1 Whether it was open for the first appellate court to allow the appeal and remit the same back to the trial court with a further direction to consider the counter claim raised by the defendant, in the absence of there being any challenge by the defendant to the order passed by the trial court rejecting the counter claim presented by the defendant, during the pendency of the appeal ? 2 Whether the first appellate court was justified in invoking the provisions of section 105 of the Code of Civil Procedure and take recourse to Order XLI Rule 2 of the Code of Civil Procedure for issuing direction for setting aside the decree passed by the trial court and for issuing direction to the trial court, on remand of the matter, to consider the counter claim raised by the defendant ? 6 It is not disputed that defendant by presenting a written statement urged that by virtue of subsequent transaction entered into between the parties, he is entitled to recover an amount of Rs.1,40,000/- in addition to the amount of Rs.15,000/- which is recorded in the document. Defendant has contended that the transaction between plaintiff and defendant is a conditional sale with a stipulation to re-convey the property on fulfilment of condition in respect of refund of the amount by plaintiff. According to the defendant, relationship between plaintiff and defendant was not that of a mortgagor and mortgagee and the transaction entered into between them ao15.06 7 is not a loan transaction. Trial court in the first instance refused to take cognizance of the counter claim raised by the defendant in his written statement and rejected the same. Trial court also refused permission to the defendant to deposit court fees in respect of claim of recovery of amount of Rs.1,40,000/-. It is also admitted position that defendant did not challenge said order. Trial court considered the issue in respect of nature of transaction and recorded finding that the transaction between the parties is a mortgage by conditional sale and not a conditional sale with a stipulation in respect of re-conveyance of the property. First appellate court, however, did not consider the issue in respect of nature of transaction and found fault with the act of the trial court in refusing to permit the defendant to raise the counter claim. First appellate court has recorded finding that in view of provisions of section 105 of the Code of Civil Procedure as well as considering the provisions of Order XLI Rule 2 of the Code of Civil Procedure, trial court ought to have considered the counter claim raised by the defendant. It was contended on behalf of the appellant that both the provisions are not attracted in the case. Section 105 of the Code of Civil Procedure relates to “other orders” whereas order in respect of rejection of counter claim would amount to a decree and would be appealable. Order ao15.06 8 XLI Rule 2 of the Code of Civil Procedure is in respect of ground which may be taken up in an appeal. It is in short contended by the appellant that the order in respect of rejection of the counter claim raised by the defendant has attained finality and the first appellate court is not competent to take cognizance of the order passed by the trial court during continuance of the appeal which has attained finality. 7 My attention is invited by respondent to provisions of Order XLI Rule 33 of the Code of Civil Procedure and it is contended that even in the absence of there being any challenge to the order passed by the trial court rejecting the counter claim presented by the defendant, the question can very well be agitated in the pending appeal and the appellate court is within its bounds in considering the challenge. Order XLI Rule 33 of the Code of Civil Procedure provides thus :- . Power of the Court of Appeal :- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, [and may, where there ao15.06 9 have been decree in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: . [ Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] . In this regard reference can be made to the judgment of the Apex Court in the matter of Mahant Dhangir and another vs. Madan Mohan and others reported in 1987 (Supp) Supreme Court Cases 528. It is observed in paragraph no. 15 of the judgment thus : . The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any quetion not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The word “as the case may require” used in Rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We are not giving any liberal interpretation. The ao15.06 10 rule itself is liberal enough. The only constraint that we could see, may be these : That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities. . On consideration of the provisions of Order XLI Rule 33 of the Code of Civil Procedure and on going through the observations made by the Apex Court in the matter cited supra, in my opinion, although the appellate court has taken recourse to recording wrong provisions in the judgment, in view of provisions of the Code of Civil Procedure, the appellate court can very well determine all questions urged in order to render complete justice between the parties. As observed by the Apex Court in the matter of Chaya and others vs. Bapusaheb and others reported in (1994) 2 Supreme Court Cases 41, Rule 33 of Order 41 of the Civil Procedure Code is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid ao15.06 11 contradictory and inconsistent decisions on the same questions in the same suits. In an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule. Reliance can also be placed on the judgment in the matter of K. Muthuswami Gounder vs. N. Palaniappa Gounder reported in (1998) 7 Supreme Court Cases 327 which reiterate the views expressed in Mahant Dhangir’s case. . Considering the provisions of Order XLI Rule 33 of the Code of Civil Procedure as well as interpretation put to the provisions by the Apex Court interpreting the powers exercisable by the appellate court, I am of the view that the first appellate court was justified in issuing directions to the trial court to consider the counter claim raised by the defendant. 8 Appellant has presented an affidavit in reply and has contended that the property is in possession of the defendant since last several years and in order to settle the dispute and to put an end to the litigation, the plaintiffs are ready and willing to pay an amount of Rs.1,55,000/- to the defendant instead of amount of Rs.15,000/- as directed by the trial court in Regular Civil Suit no. 71/1994. Considering the affidavit tendered by the appellants in this ao15.06 12 court, no adjudication is necessary in respect of the counter claim raised by the defendant claiming an amount of Rs.1,55,000/- which is admitted by plaintiff. In view of the affidavit presented by plaintiff on record and in view of expression of willingness to deposit an amount of Rs.1,55,000/- as contended by the defendant in his counter claim, the matter need not be remitted back to the trial court for consideration of the counter claim and the appellate court can very well issue appropriate directions and can mold the relief. Defendant has expressed an apprehension that if the counter claim raised by him is directed to be considered, it would be outside the purview of limits of pecuniary jurisdiction of the trial court and as such decree shall have to be passed by the first appellate court. In view of the judgments referred to above, the appellate court would be perfectly within its bounds in issuing proper directions and molding the relief. The first appellate court can very well issue direction in respect of payment of amount of Rs.1,55,000/- and can direct modification in the decree passed by the trial court or may pass appropriate decree. The objection raised by the defendant at this stage needs no consideration. 9 First appellate court did not consider the other points i.e. point nos. 2 ao15.06 13 to 7 and rendered the decision only on consideration of point no. 1. It was obligatory for the first appellate court to deal with the issue arising in the suit in respect of nature of transaction and record the finding as to whether the disputed transaction is a mortgage by conditional sale or a sale with condition in respect of re-conveyance. The first appellate court is expected to deal with all the questions raised in the matter and infact is not justified in remitting the matter only on consideration of one issue. Reference can be made to a judgment of the Apex Court in the matter of Balkrishna Dattatraya Butte & others Vs. Dattatraya Shankar Mohite & others reported in 1998(2) All MR 740. In paragraph no. 5 of the judgment, it is observed by the Apex Court thus : . “..... The order of remand is never passed as a matter of routine or for mere asking. Once the trial Court has examined the case on the basis of the available evidence and has reached conclusion, unless a clear case for remand was made out, the Appellate Court ought not to have remanded the matter. An order of remand under Order 41 Rule 23A cannot be made without considering the merits of the findings recorded by the trial Court. Not only that the merits of the findings recorded by the trial court are required to be seen but has to be reversed and set aside and if the appellate Court finds that retrial was necessary, a case for remand could be made out. Prior to the year 1976 even where amended provision of Order 41 Rule 23A CPC was not there it was consistently held by the Court that an order of remand can be made only if the finding of the lower ao15.06 14 court is reversed in appeal. The legal position is now clarified by amending Order 41 Rule 23A which empowers the Appellate Court to remand the mater where the decree is challenged in appeal having been passed in a suit otherwise on a preliminary point and the decree reversed in appeal and retrial is considered necessary. Obviously, therefore, whenever a remand is made under Order 41 Rule 23A the findings recorded by the trial Court have to be examined and reversed in appeal and then retrial, if considered necessary may be ordered. In the present case the Appellate Court has exercised its power of remand under Order 41 Rule 23A when prerequisite conditions for remand were not made out. 10 In the facts and circumstances of the case, I am of the opinion that remanding the matter back to the trial court would not serve any purpose and specially in the circumstances when the plaintiff is admitting entitlement of defendant to recover an amount of Rs.1,55,000/- in terms of the counter claim raised by defendant. The first appellate court can issue appropriate directions in respect of recovery of court fees from defendant in the event of effecting modification in the decree entitling the defendant to recover the amount. First appellate court needs to consider the issue in respect of nature of the transaction and answer the same. The ends of justice would be served if the matter is directed to be heard by the first appellate court which would avoid unnecessary remand of the matter to the trial court and ao15.06 15 wastage of further time of the litigating parties. 11 Appeal is thus allowed. Judgment and decree passed by the Ad-hoc Additional District Judge, Nandurbar in Regular Civil Appeal no. 36/2000 is quashed and set aside and the first appellate court is directed to decide the appeal in accordance with the directives issued in this judgment, as expeditiously as possible. The first appellate court shall after giving an opportunity of hearing to the parties concerned, decide the appeal by the end of the year 2011. In the facts and circumstances of the case, there shall be no order as to costs. 12 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE ) JUDGE dyb ao15.06 16