K^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.No.4of2010 - -' ADpeItants Plaintiffs Respondents Defendants '^ y- 1. Harlal, aged 54 years, S/oKriparam 2. Rohit Kumar, aged 45 years, S/o Kriparam (Both R/o Village Devtara, Tahsil & Djstt. BilaspurCG). Versus 1. Hariram, aged 48 years, S/o late Gopiram Sahu, R/o Jhopdapara, Near Railway Station. Bilaspur, Tahsil & Djstrict Bilaspur (CG). 2. Thumukram, aged 44 years, S/o late GopiramSahu 3. Mithjlesh Kumar, aged 39 year3, S/o late Gopiram Sahu 4. Smt. Dukhnj BaJ, aged 75 years, Wd/o Gopjram Sahu, 5. Triveni Bai, aged 54 years, D/o Late Gopiram Sahu 6. Gangabai, aged 33 years, D/o late Gopiram Sahu (Sl. N0. 2to 6R/oVJIIageDevtara.Tahsil and Djstrict BilaspurCG). 7. Bhuvneshwar, aged 14 years, S/o late Dulareram Sahu 8. Jagannath, aged 10 years, S/o Late Dulareram Sahu (Sl. No. 7 & 8 minor through Guardjan at litemSmt. RamaBai). 9. Rama BaJWd^o Dulareram Sahu (Sl. No. 7 to 9 R/o Darri, Tahsil and Distt. Korba(CG). 10. State of Chhattisgarh through the Collector, Bilaspur (CG). ^' 'v. •:./ Appeal U/s 43 Rute1 fU) of Code of Civil Procedure (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri Sanjay S Agrawal, Advocate for appellants Shri MK Bhaduri, Advocate forthe respondents. ORALORDER (Passed on 5thdayofApril, 2010) 1. This is plaintiffs appeal under Order 43 Rule 1 (U) of CPC, directed against the judgment dated 17.12.2009, passed by Ist Additional District Judge, Bilaspur, in civil appeal No. 5-A/2009 whereby and whereunder the case has been remanded back for decision afresh to the trial court. 2. The plaintiffs/appellants instituted a suit claiming reliefof declaration of title, permanent injunction and also to declare the order passed bythe Tehsildar as illegaland void. 3. The trial court on appreciation of pleadings pf the parties, evidence ted, material placed and submissions made by the parties, decreed the plaintiffs suit. 4. There against, the respondenfs herein have preferred a regular civil appeal before the Ist Additional Disfrict Judge, Bilaspur, vide impugned judgment, the said appealwas allowed and the matter was remanded backto the trial court for its decision afresh. Hence thisappeal. 5. Shri Sanjay S Agrawal, learned counsel appearing for the appellants would contend that the appellate court has framed two questions for determination which are: i. Whether the documents filed by the respondents alongwith application under Order 41 Rule 27 of CPC are liable to be taken on record as additional evidence. ....d >' \- L- 8. ii. Whether the judgmentanddecreedated 07.01.2009, passed by the trial court being contrary tolaw and facts, deserves to be set aside. The appellate court allowed the application under Order 41 Rule 27 of CPC filed by the respondents but did not decide the second question and only on the basis of decision on first question remanded the matter which is per se illegal and deserves to be set aside. He wbuld further contend that in such situation, at the most, the court can direct the trial court under Order 41 Rule 28 of CPC fromwhose decree the appeal is preferred to take such evidence and to send back the appeal after taking such evidence to the appellate court. Shri MK Bhaduri, learned counsel appearing for the respondents could not dispute the aforesaid legal position. However, he would contend that jnstead of setting aside the decree, this court may modify the order passed by the Ist Appellate Court directing the trial court to record evjdence and send the record back to the appellatecourt. 1 have heard the counsel appearing for the parties, perused the order impugned and records of courtbelow. In order to appreciate the appellants contentjon, it would be appropriate to refer the provisions contend in Order 41 Rule 23, Rule 23 (A) and Order 41 Rule 28of CPC which reads as under: "23. Remand of case by Appellate Court-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall senda copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register ofcivilsujts, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23A. Remand in other cases-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule23.] 28. IVIode of taking additional evidence- Wherever additional evidence is allowed to be produced, the Appellate Court may either take sych evidence 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." 10. A bare perusal of the above provision would reveal that when an application for adducingadditional evidence under Order41 Rule 271s allowed, the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so. 11. The Supreme Court in case of Shanti Devi v. Daropti Devi and Others1 has observed in para 13 of itsjudgment as under: "13. But the same by itself could not be a ground for remitting the entire suit to the leamed Trial Judge upon setting aside the decree of the Jearned Trial Court. The power of remand vests in the Appellate Court either in terms of Order XLI Rules 23 & 23A or XLI Rule 25 of the Code of Civil Procedure. Issue No. 4 was held to have been wrongly framed. Onusof proof was also wrongly placed and only in that view of the matter the High Court thought it frt to remit it to the learned Trial Judge permitting the parties to adduce fresh evidence. It, therefore, required the learned Trial Judge to determine a question of fact, which according to it was essential, upon reframing the issue." 12. The same view has been reiterated by the Supreme Court in para 7 & 10 of its judgment passed in H.P. Vedavyasachar v. Shivashankara and Another2. l2006 (13) SCC 775 2 2009 (8) SCC 231 ^^ 13. 14. In view of above, in the considered opinion of this court, the appellatecourt could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 23, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case, 1 therefore, Sn modlfication of the above judgment passed bythe appellate court, direct as under: i. The trial court upon recording the evidence as directed by the appellate court, shall transmit the records to the the first appellate court with a copy of its report annexed thereto. ii. Such an exercise by the trial court must be completed wjthin a period of three months from the date of communication ofthis order. iii. The first appellate court must dispose of the first appeal on receipt of the said order as also the evidence as adduced asexpeditioLlsly as possible and not later than eight weeks fromthe date of receipt of the said report. In the factsand circumstances of this case, there shall be no order as to costs. The appeal is disposed of, accordingly. Sd/- N.K.Agrawal Judge Sahu