S.A.O.No.3 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH S.A.O.No.3 of 2009(O&M) Date of Decision:02.07.2010 Jagtar Singh and another ......Appellants Versus Bachan Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.PPS Duggall, Advocate, for the appellants. Mr.Vivek Suri, Advocate, for respondent Nos.1 to 6. **** M EHINDER S INGH S ULLAR , J.(Oral) The challenge in this appeal filed by Jagtar Singh son of Shankar Singh and his son-Gurdip Singh, appellants-defendants(hereinafter to be referred as “the defendants”), is to the judgment dated 20.11.2008, vide which the first appellate Court has set aside the judgment and decree dated 06.05.2008 of the trial Court and remanded the case back to it for its fresh decision. 2. The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that Bachan Singh and others, respondents-plaintiffs(for brevity “the plaintiffs”) filed the suit against the defendants, for a decree of possession of the disputed property, denominated and described in the plaint, situated in village Bareke, Tehsil and District Ferozepur, on the basis of title. Levelling a variety of allegations in all according to the plaintiffs, they are owners of the suit property, but the defendants are in its unauthorised possession. They asked the defendants to hand over the vacant possession of the disputed property, but in vain, which necessitated them to file the present suit. On the basis of aforesaid allegations, the plaintiffs filed the suit for decree of possession against the defendants, in the manner indicated here- in-above. 3. The defendants contested the suit and filed the written statement, S.A.O.No.3 of 2009 2 inter alia, pleading certain preliminary objections of, maintainability of the suit, locus standi of the plaintiffs and limitation etc. On merits, it was, inter alia, claimed that defendant Nos.1 and 2 are the owners of the suit property. They have constructed their residential houses about 35/40 years back, when the village New Bare Ke was established. The defendants admitted their possession as owners over the suit property. Succinctly, according to the defendants, they are the owners in possession of the suit land and the plaintiffs have got no right, title or interest in it. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings in the plaint, the plaintiffs filed the replication. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- “1. Whether the plaintiffs are entitled to decree for possession of the suit property as detailed in the title of the suit?OPP 2. Whether suit is not maintainable in the present form?OPD 3. Whether the suit is within limitation?OPP 4. Relief”. 6. The parties produced on record the oral as well as the documentary evidence to prove their respective pleas. 7. The trial Court, after taking into consideration the evidence brought on record, decreed the suit and granted a decree of possession of the disputed property in favour of the plaintiffs vide impugned judgment and decree dated 06.05.2008. 8. Aggrieved by the impugned judgment and decree of the trial Court, the appellants-defendants filed the appeal, which was accepted by the first appellate Court and the case was remitted back to the trial Court for fresh decision vide impugned judgment dated 20.11.2008. 9. Although, the appeal of the appellants-defendants was accepted and the impugned judgment and decree of the trial Court were set aside by the first appellate Court, but still they did not feel satisfied with the impugned judgment of the first appellate Court and filed the present appeal. That is how I am seized of the matter. 10. As strange, as it may seem, but strictly speaking the tendency and frequency of the lower appellate courts in remanding the cases, without any legal S.A.O.No.3 of 2009 3 basis, in order to show the disposal of the appeals, is increasing day by day and the case in hand is the burning example of such cases. 11. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the impugned judgment of the first appellate Court cannot legally be sustained, therefore, the instant appeal deserves to be accepted, for the reasons mentioned here-in-below. 12. As is evident from the record that the plaintiffs filed a simple suit for a decree for possession on the basis of title. Both the parties produced oral as well as the documentary evidence, in order to substantiate their respective stands. On ultimate analysis of the evidence brought on record, the trial Court decreed the suit of the plaintiffs. In the wake of acceptance of the appeal filed by the defendants, the first appellate Court set aside the judgment and decree of the trial Court and remanded the matter back vide impugned judgment dated 20.11.2008. Thus, it would be seen that the facts of the case are neither intricate nor much disputed, as regards the present concise controversy is concerned. 13. As indicated earlier, the first appellate Court remanded the case to the trial Court vide impugned judgment dated 20.11.2008. The operative part of which is, as under:- “For the discussion made above, the appeal is accepted with costs and the impugned judgment and decree of the learned trial Court is set aside and the case is remanded back to the learned trial Court with the direction to appoint revenue officer as local commissioner and he be given direction to demarcate the suit property according to Rules and both the parties be given two effective opportunities to lead evidence. Lower court record be sent back and both the parties are directed to appear before the learned trial Court on 03.12.08 at 10A.M.”. 14. Such thus, being the position on record, now the short and significant question, though important, arises for determination in this appeal is, whether the first appellate Court was legally justified in remanding the case to the trial Court or not? 15. Having regard to the rival contentions of the learned counsel for the parties, relatable to the material on record, to my mind, the first appellate Court has slipped into legal error in this relevant connection. Assuming for the sake of arguments(though not admitted), if the first appellate Court felt the necessity of further demarcation, it ought to have itself appointed the Local Commissioner to S.A.O.No.3 of 2009 4 demarcate the property in dispute, or ought to have proceeded to take the additional evidence, instead of remitting the matter to the trial Court for fresh trial. 16. Order 41 Rule 24 CPC postulates that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce the judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree, the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. Rule 25 posits that 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 thereof. 17. Thus, the co-joint reading of these provisions would reveal, that the first appellate Court can remand the case to the trial Court only in the event, if that squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on record, then it was for the appellate Court to decide the case on merits, as contemplated under Rule 24 CPC. It cannot straightway rush to Rule 25 CPC to make an order of remand. The order of remand can only be made, where the trial Court has omitted to frame or try any issue, or to determine any question of fact essential to right decision of the suit. Rule 25 CPC is only to be invoked, where an issue should be framed for proper decision of the suit, but was not framed by the trial Court. The provisions of remand cannot be invoked to enable the parties to have a second innings with a view to fill-up the lacuna in the pleadings or evidence, as the case may be. The Courts should be slow to exercise the jurisdiction of remand, as envisaged under Rule 25 CPC, otherwise there would be no end to the litigation. The appellate Court having found all the facts, should work out the legal consequences and ought to have decided the matter itself, instead of sending the case back to the trial Court. There is no bar in deciding the issues on merits raised in the first appeal by the appellate court itself. The order of remand cannot possibly be passed in a routine manner/fashion just in order to dispose of the appeals, without any legal basis. 18. Thus, seen from any angle, the impugned judgment of remand is not in consonance with the statutory provisions of Order 41 Rule 25 CPC. Since, there S.A.O.No.3 of 2009 5 was sufficient evidence on record to decide the real controversy between the parties, so, the appellate Court ought to have decided the matter itself, as contemplated under Order 41 Rule 24 CPC, instead of remitting the matter back to the trial Court in a routine fashion. Therefore, the impugned judgment of the first appellate Court cannot legally be sustained, in the obtaining circumstances of the case. 19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the case, the instant appeal is hereby accepted. The impugned judgment dated 20.11.2008 is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law. 20. The parties through their counsel are directed to appear before the first appellate Court on 27.08.2010. July 02, 2010 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter? Yes/No