IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. 1. FAO (Ord) No. 114 of 2007. Sat Pal & others …..Appellants. Vs. Sh. Jeet Singh …..Respondent. ________________________________________________________________________ 2. FAO (Ord.) 115/2007 Date of Decision 21st April, 2008. Sat Pal & others …..Appellants. Vs. Sh. Jeet Singh …..Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. R.K. Gautam, Sr. Advocate,with Mr. Naveen Bhardwaj, Advocate. For the Respondents: Mr. Rajiv Jiwan, Advocate. Dev Darshan Sud, Judge. Both these appeals arise out of the same order, hence are taken together for decision. These appeals have been preferred by the appellants against the order of the learned District Judge, Bilaspur accepting the appeal instituted by the plaintiff-respondent against the judgment and decree of the learned trial court dismissing the suit instituted by the plaintiff Jeet Singh. 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - While deciding the appeal, the learned District Judge held that the plaintiff had pleaded before the appellate court that while deciding issue No. 1 i.e. “Whether the plaintiff is entitled to the possession of the suit, as alleged OPP?”, the trial court has held that the defendants have become owners of the suit land by way of adverse possession. There was no such issue before the learned trial court and findings returned on this issue, are against law. The learned appellate court also took into consideration the arguments advanced by the learned counsel for the defendant that although there was no specific issue on adverse possession yet there was sufficient evidence on the record to determine this fact, evidence having been admitted without objection, both parties knew their respective claims and, therefore, the appeal of the plaintiff deserves to be dismissed. Learned District Judge framed following issue:- “3-A Whether the defendants have become owners of the suit land by way of adverse possession? OPD.” Taking resort to the provisions of Order 41 Rules 23, 23-A and 25, holding that the matter required retrial. Of course, the court notices that whole sale remand cannot be resorted to. The mere fact that a power is vested in the court does not mean that it has to be resorted to on every occasion, but on settled judicial principles. On the question of remand, the Supreme Court in P. Purushottam Reddy and another vs. Pratap Steels Ltd. (2002) 2 SCC 686 held: - 3 - “10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23a in Order 41 of the Code of Civil Procedure by CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be - 4 - produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23a has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23a as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23a. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23a. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23a or Rule 25 of the CPC. An unwarranted order of remand gives the - 5 - litigation an undeserved lease of life and, therefore, must be avoided.” The Division Bench of this court in Parma Nand vs. Arvind Diwan & another Latest HLJ 2003 HP 40 has also held that whole sale remand is to be avoided. Mere non-framing of the issue without anything more would not amount to a situation where a whole sale remand is called for. One of the submissions made by the learned counsel appearing for the defendants was that there was sufficient and ample evidence on the record to establish the plea of adverse possession as raised by them. In these circumstances, it would have been imperative for the learned appellate court to have gone into this question as to whether there was sufficient evidence on the record to warrant a finding on the issue as framed by the learned appellate court. This was not a case where entire case should be sent back for retrial. Rule 25 of Order 41 is otherwise clear. After settling the issue, if any, which is considered necessary for the just determination of the suit, it was for the appellate court to have sent that issue for determination after granting the parties an opportunity of leading evidence to establish their respective claims. In the facts and circumstances of the case, these appeals are allowed. The judgment of the learned appellate court is quashed and set aside with the following directions:- (i) The case shall remain pending in the court of learned District Judge. - 6 - (ii) The learned District Judge will ascertain as to whether there was sufficient evidence on the record or not to adjudicate the plea of adverse possession, if so, whether any prejudice is caused to any party only on the non-framing of the issue. There will be no remand of the matter to the learned trial court in case there is ample evidence and the parties have not objected to the evidence being admitted. In case the court concludes that non- framing of the issue has caused serious prejudice in the absence of evidence before the learned trial court, only Issue No. 3-A as framed by the learned appellate court will be sent for determination by the learned trial court. Of course, needless to say that both the parties will be given full opportunity to establish their respective claims, as alleged and covered by this issue. On receipt of the findings on this issue, the learned appellate court will re-determine the matter in accordance with law. Parties are directed to appear before the learned District Judge on 30.7.2008. There shall be no order as to costs. 21st April, 2008. (Dev Darshan Sud), (cm) Judge.