HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 304 of 2008 Smt. Kaushalya Devi ..… Appellant. Versus Ramnaresh and others. ….. Respondents. Mr. M.S. Tyagi, Advocate for appellant. Mr. Lok Pal Singh, Advocate for respondents. Hon’ble B.S. Verma, J. This appeal, preferred under Order 43 Rule 1 of Code of Civil Procedure, 1908, is against the judgment and order dated 22.04.2008, passed by District Judge, Haridwar, in Civil Appeal No. 27 of 2004, Ram Naresh Versus Smt. Kaushlya Devi and others, whereby the appeal was allowed and judgment and decree dated 23.09.2004, passed by Civil Judge (Sr. Division), Haridwar, in Original Suit No. 126 of 1997, Smt. Kaushlya Devi Versus Malkhan and others, has been set aside and suit has been remanded for disposal before trial court. Brief facts giving rise to the appeal are that a suit for specific performance of contract was filed in the year 1997, registered as suit No. 126 of 1997, before Civil Judge (Senior Division), Haridwar, against the respondents. The aforesaid suit was decreed ex-parte by the trial court in favour of appellant/plaintiff vide order dated 19.08.2000 (Annexure no. 3 to the appeal). Feeling aggrieved by said order dated 19.08.2000, the defendant—Malkhan Singh, preferred a civil appeal No. 10 of 2002, Malkhan Singh Versus Smt. Kaushlya Devi, before District & Sessions Judge, Haridwar. Vide order dated 30.07.2002 (annexure no. 4 to the appeal), 2 District & Sessions Judge, Haridwar, allowed the appeal and the matter was remanded back to the trial court and appellant was given an opportunity to adduce evidence. Thereafter, suit was again heard and decided on merit vide order dated 23.09.2004 by Civil Judge (Senior Division), Haridwar. Aggrieved by order dated 23.09.2004, passed by the trial court, civil appeal No. 27 of 2004, was preferred by Ram Naresh (son of original defendant-Malkhan Singh). Learned District Judge after hearing the parties, vide order dated 22.04.2008, again remanded the suit to the trial court on the ground that the issues have not been properly framed. The issue No. 1 framed by Civil Judge (Senior Division), Haridwar is as under:- D;k oknh@izR;FkhZ vuqcU/k ds vk/kkj ij fodz; foys[k djkus dk vf/kdkjh gS vkSj D;k og lnSo fodz; foys[k djkus ds fy, rS;kj jgk gS\ Learned District Judge, Haridwar, on the basis of pleadings of the parties, has observed in its order that issues ought to have been framed as under:- 1. D;k oknh@izR;FkhZ Jherh dkS’kY;k nsoh ,oa izfroknh ey[kku flag ds e/; vuqcU/k Ik= fnukad 2-05-1994 dks fu"ikfnr fd;k x;k Fkk] ;fn gka rks mldk izHkko\ 2. D;k izfroknh ey[kku flag ds dFkukuqlkj mlus oknh@izR;FkhZ ds ifr f’k’kqiky flag ls 2000@& :Ik;s m/kkj fy;s Fks] ftls ,d o"kZ ckn okil dj fn;k x;k Fkk\ 3 3. D;k oknh@izR;FkhZ dk okn fof’k"V vuqrks"k vf/kfu;e dh /kkjk 20 ls ckf/kr gS vkSj D;k izfroknh mldk ykHk ikus dk vf/kdkjh gS\ Learned counsel for the appellant placed reliance on the judgment reported in JT 2007 (1) SC 503, Shanti Devi Vs. Daropti Devi and others, wherein in para 15 it has been held as under:- “15. In the aforementioned situation, in our opinion, it would have been proper for the High Court not to remit the matter in its entirety, which could have been done by the court in exercise of its jurisdiction under Order XLI Rule 23 or Order XLI Rule 23 A of the Code of Civil Procedure. The impugned judgment must in the aforementioned situation be held to have been passed in terms of Order XLI Rule 25 of the Code of Civil Procedure.” Learned counsel for the appellant, also placed reliance on the judgment reported in JT 2008 (7) SC 247, Municipal Corporation Vs. Sunder Singh, wherein in para 10 and 11, it has been observed as under:- “10. Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be 4 exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.” Reliance has also been placed on yet another judgment, reported in JT 2002 (5) SC 5, P. Purushottam Reddy and another Vs. Pratap Steels Ltd., wherein in para 10, it has been observed as under:- “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 23-A in order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41, CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a 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 in as much 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 appellate court………..” Learned counsel for respondent, in reply thereto has vehemently argued that order of remand has rightly been passed by learned District Judge, since the issue no. 1 was not properly framed and 5 has rightly been observed that issue for refund of the amount was not framed and the same needs to be framed. In support of his arguments, learned counsel for the respondent, placed reliance on the law laid down in the judgment of Narayanan Vs. Kumaran and others, reported in (2004) 4 Supreme Court Cases 26, wherein it is held in para 17 it has been held as under:- “17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court.” 6 I have heard learned counsel for the parties and gone through the judgment and order passed by the appellate court. According to the plaintiff, as per averments made in the plaint, an agreement was executed in favour of the plaintiff by late Sri Malkhan Singh, as has been stated in para-2 of the plaint. Defendant in his reply has denied the averment made in para- 2 of the plaint and in the additional pleas, it is stated in para-15 that he borrowed a loan from the husband of the appellant which was refunded. Learned appellate court has also observed that issue to this fact needs to be framed. Answer to issue No. 1:- Plaintiff has specifically stated in para-2 of the plaint that agreement was executed between the plaintiff and defendant– Malkhan Singh and on its basis following issue was framed by the trial court:- Whether the plaintiff on the basis of the agreement dated 02.05.1994, as has been mentioned in the plaint, is entitled to get sale deed in his favour? Since this averment has specifically been made in the plaint that agreement was executed between the plaintiff and the defendant, there is no need to reframe the issue, as suggested by learned appellate court and the burden lies on the plaintiff. Therefore, Issue No. 1 stands answered accordingly. Answer to issue No. 2:- So far as loan amount is concerned that has no relevance with the plaintiff, as nowhere it is stated that loan was obtained from the plaintiff. Therefore, issue no. 2 stands answered accordingly. 7 Answer to issue No. 3:- So far as issue No. 3 whether the suit is barred by Section 20 of the Act is concerned, there is no such plea taken in the written statement, therefore, the finding of the appellate court is totally perverse and against the material on record. No issue could be framed without pleadings of parties. Therefore, Issue no. 3 also stands answered accordingly. Having heard learned counsel for the parties and after going through the judgment and order passed by the appellate court, this Court is of the view that appellate court has committed manifest error of law in observing that the new issues, are to be framed. Therefore, in view of the judgment of the Apex Court referred above, the scope of Order 41 Rule 23 of C.P.C. is very limited. If the appellate court was of the view that issue no. 1 which was framed, ought to have been recast, the power lies with the appellate court itself to recast the issues and Rule 25 of Order 41 applies when an appellate court notices an omission on the part of trial court to frame or try any issue or to determine any question of fact which in the opinion of appellate court was essential to the right decision of suit upon merit and that is limited remand, as has been held in para 10 of the Apex Court judgment reported in P.Purushottam Reddy (Supra). In the facts and circumstances of the case as discussed above, it is not the case to be remitted under Rule 25 of C.P.C. to the trial court for decision on an issue. Order of Remand should not 8 be passed as a matter of routine. The appellate court cannot shirk its duties. Having heard learned counsel for the parties and on the discussion made above, the appeal deserves to be allowed. The same is allowed. Appellate court is directed to decide the appeal on merit as expeditiously as possible on the basis of evidence led by the parties before the trial court. Lower Court Record be remitted to the appellate court. (B.S. Verma, J.) 28.06.2011 S 9