1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.73 OF 2007 Sayed Akbar s/o Sayed Noor, age 66 years, occu. Agriculturist, r/o Dargah Sayeed Chand, Udgir, Tq. Udgir, Dist. Latur. ... APPELLANT. ( Ori. Plaintiff) Versus 1. Dhondiba s/o Namdeo Bhosale, age 72 years, occu. Agril., r/o Nai Aabadi Udgir, Dist. Latur. 2. Sayeed Habib s/o Sayeed Noor, age 59 years, occu. Agri., r/o Dargah Sayeed Chand Udgir, Taluka Udgir, Dist.Latur. ...RESPONDENTS (Orig. defendants) ... Mr.Vinesh Solshe, Advocate holding for Shri Vivek Solshe, Advocate for appellant. Shri D.S. Kudale, Advocate holding for Shri P.G. Rodge, Advocate for Respondent No.1. R.No.2 served. ... CORAM: S.S. SHINDE, J. 29th October, 2010. 2 ORAL JUDGMENT: 1 This appeal from order is filed challenging the judgment and order dated 5th April, 2007 passed by the Ad hoc District Judge-1, at Udgir in R.C.A. NO.27 of 2002. 2 The appellants herein filed suit for perpetual injunction with declaration of ownership. The said suit was decreed by the trial Court. The trial Court, framed as many as nine issues for its determination and after appreciating the evidence brought on record and after considering the rival submissions, decreed the suit of the appellant herein. The trial Court has considered the matter on various aspects i.e. exclusive ownership of the suit property, exclusive possession, whether the plaintiff proves that the defendants are obstructing the possession of the plaintiff, whether the suit property was valued for court fees and jurisdiction and 3 there were other issues also. However, the appellate Court, without going into any other aspects, framed only one point for its consideration i.e. `whether this is a fit case to remand to the trial Court for inquiry about the valuation of the suit land?’ The said issue was answered in affirmative. 3 The learned Counsel for the appellant submits that the issue which was framed by the appellate Court ought to have been gone into by the appellate Court and the appellate Court was competent to decide and adjudicate the said issue and it was absolutely unwanted to remand the matter back to the trial Court. The learned Counsel further submitted that since the trial Court has taken into consideration all the points and thereafter the suit was decreed, the appellate Court, without framing any other points for its determination, has remanded the matter back to the trial Court. The learned Counsel further 4 submitted that if the appellate Court came to the conclusion that the suit was not properly valued, the appellate Court was empowered to set aside the judgment of the trial Court. However, it was not proper for the appellate Court to remand the matter back to the trial Court. He placed reliance on the judgment of the Supreme Court in the case of P. Purushottam Reddy and another vs. M/s Pratap Steels Ltd., reported in AIR 2002 SC 771 and more particularly, Head Note (B) of the said judgment and submitted that this appeal from order deserves to be allowed. It is further argued that the impugned judgment and order is in contravention of the provisions of Order 41 Rule 23, 23A, 25 and 33 of C.P.C. In support of his contention, counsel invited my attention to the report judgments of the Supreme Court in the cases of State of T.N. Vs. S. Kumaraswamin and others, reported in AIR 1977 SC 2026, Ashwinkumar K. 5 Patel Vs Upendra J. Patel and Ors. reported in AIR 1999 SC 1125, P. Purushottam Reddy and Anr. Vs. M/s. Pratap Steels Ltd. reported in AIR 2002 SC 771, Municipal Corporation, Hyderabad Vs. Sunder Singh, reported in 2008 (8) SCC 485, Godrej Rustom Karmani Vs. Hari Alidas Thadani and Ors. reported in 1990 (3) Bom. C.R. 587. Relying on the aforesaid judgments, counsel for the appellant would submit that the this Appeal From Order deserves to be allowed. 4 On the other hand, learned counsel appearing for the concerned respondents submitted that it is not necessary for the lower appellate court to formulate the points while remanding the matter back to the trial court. According to him, one issue has been framed by the appellate court and based on it, the matter was remanded back. He further 6 submitted that there are various pronouncements of this Court, which have taken view that it is not necessary for the lower appellate court to formulate the points. Learned counsel further submitted that the appellants herein have no concerned with the suit land and therefore, this Appeal From Order deserves to be dismissed. Counsel in support of his submissions heavily relied upon the reasons recorded by the lower appellate court while remanding the matter back to the trial court for fresh consideration. The learned Counsel for the respondents invited my attention to the reasons recorded by the appellate Court and submitted that since the order passed by the trial Court is without jurisdiction and the appellate Court, after adjudicating the matter, found that the matter is required to be remanded back to the trial Court for inquiry about the valuation of the suit land. Therefore, there is no any 7 infirmity in the judgment and order of the appellate Court. He therefore, prayed that this appeal from order should be dismissed. 5 I have given due consideration to the rival submissions of the learned Counsel for the parties, perused the judgment and order of the appellate Court as well as the trial Court. Upon perusal of the same, it clearly appears that the trial Court, after taking into consideration all the points involved in the matter, has passed decree. The appellate Court, without referring to any other point, only considered the point of valuation of the land and remanded the matter back to the trial court. Under sub-section ((2) of section 102 of the Code of Civil Procedure, the appellate Court has same powers and duties like original court. It was possible for the appellate Court to adjudicate the issues involved and decide the matter one way or the other at the appellate stage itself instead of remanding 8 the matter back to the trial Court. The Supreme Court has, time and again reminded that the remand order should be exceptional and not as a rule. The remand order causes inconvenience to the parties and it delays proceedings and therefore, remand order should not be made casually. As it appears, the judgment and decree of the trial Court has been set aside in its entirety. Therefore, in my opinion, the judgment and order passed by the appellate Court deserves to be set aside. 6 In ordinary course, this Court would have disposed of the matter here itself. However, in view of the judgment of the Apex Court in the case of Narayanan Vs. Kumaran and others, reported in (2004) 4 SCC 26, the Hon’ble Supreme court has considered the provisions of Order 43 Rule 1(u) i.e. appeal from order under the provisions of section 104 of C.P.C. Order 43 Rule 1(u) reads thus:- 9 “43. (1) Appeals from Orders. - An appeal shall lie from the following orders under the provisions of Section 104 namely- (a) to (t) * * * (u) an order under Rule 23 or Rue 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court.” In para 17 of the said judgment it is held thus:- “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 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 10 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.” Therefore, in the present case, this Appeal from order is required to be heard on the only grounds enumerated in Section 100 of C.P.C. In short, unless there is substantial questions of law falls for consideration of this court, this court is not supposed to entertain this appeal from order. This Court has to confine itself such facts, conclusions and decisions which have bearing on the order 11 of remand and cannot canvass all the findings of the facts arrived at by the lower appellate court. 7 In the light of the above, the following substantial questions of law would fall for consideration of this court: i) Whether the lower appellate court while setting aside the judgment and decree of the trial court and remanding the matter back to the trial court, has followed the scope of Order 41 Rule 23, 23-A and 25 of the C.P.C. in the light of various pronouncements of the Hon’ble Supreme court taking a view that remand order cannot be passed as a routine affairs but only in exceptional cases? ii) Whether the lower appellate court failed to follow the command of Order 41 Rule 23 and 23A that the remand should not be made as routine and the appellate court itself should decide the appeal one way or the other? iii) Whether the lower appellate court has failed in its duties to formulate the points, adjudicate the issues, consider the rival submissions and take decision one way or the other by itself without remanding the matter to trial court as provided under sub-Sec. 2 of Section 107 of the C.P.C.? iv) Whether the lower appellate court has 12 set aside the well reasoned judgment and decree of the trial court without formulating the points and addressing all issues which felt for consideration of the trial Court? At this juncture, it would be appropriate to refer the provisions of Order 41 Rule 23, 23-A and 25 of C.P.C., which reads thus:- ORDER XLI APPEALS FROM ORIGINAL DECREES “1 to 22 * * * 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 send a 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 of civil suits, and proceed to 13 determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand. 23A Remand in other cases- Whether 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 rule 23. 24 * * * 25 Where Appellate court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of facts, 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; 14 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 therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time] 7 If the impugned judgment is perused it clearly emerges that the lower appellate court has set aside the judgment and order of the trial court in its entirety and not only on the preliminary points. The lower appellate court has remanded the matter back to the trial court after setting aside the judgment and decree of the trial court. Therefore, the case in hand would fall under Section 23A of order 41 of C.P.C. However, Rule 23A provides same powers to the appellate court as it has under Rule 23. 8 When the appeal is filed challenging the judgment and decree of the trial court, then 15 it is the duty of the appellate court to take into consideration the entire important points, evidence and documents into account and then pass the necessary order in the light of the provisions of Section 107 of C.P.C.. The appellate court itself is competent to formulate the points, to address the legal issue involved in the matter and also appreciate the evidentiary value of the documents, the remand of the matter to the trial Court was not warranted. The remand order causes delay in the proceeding and also causes prejudice to the parties, as held by the Hon’ble Supreme Court. From entire discussion in para 6 to 10 and more particularly the conclusions reached in para 10 of the lower appellate court, are too cryptic to set aside the entire judgment and decree of the trial court. It appears that the lower appellate court has considered the only effect of Section 14 of the Partnership Act and contents of the Partnership deed and the 16 written statement filed by the defendants and set aside the well reasoned judgment and decree passed by the trial court. That apart, the trial court has given liberty to the parties to adduce any more evidence, if they want. If the lower appellate court was convinced that only one issue is required to be framed and addressed by the trial court in that case granting liberty to the parties to adduce any more evidence if they want, is totally unwarranted. 9 The lower appellate court itself could have considered these legal aspects. It was not that the lower appellate court was not empowered to adjudicate these legal points. It was not necessary to remand the matter back to the trial court on the legal aspects. Since the appeal is a continuous proceeding of the suit, it was open for the lower appellate court to exercise its jurisdiction and address the legal issues and all other issues felt for 17 its consideration by framing necessary points and then decide the matter by one way or the other. The lower appellate court can do so under sub section (2) of Section 107 of C.P.C. However, the lower appellate court has failed in its duties to exercise its jurisdiction vested in it and rather chosen easier way to remand the matter back to the trial court. 10 While discussing the substantial questions of law 1, 2 and 3 it is already observed that the lower appellate court has not addressed the legal issues like whether the suit is filed within limitation, the issue of ownership and whether the plaintiffs are in lawful possession of the property, all these contentions are elaborately dealt with by the trial court. 11 In the above background it would be relevant at this juncture to refer to some of the important judgment of the Hon’ble Supreme 18 Court on interpretation of Order 41 Rule 23, 23A and 25 of C.P.C. In the case of State of T.N. (supra) the Hon'ble Supreme court held that it is not permissible for the appellate court to brush aside the findings of trial court without giving any reason, without any appreciation of documents and without any appreciation of contentions of parties. 12 In the light of the discussions made in the foregoing paragraphs, the impugned judgment and order dated judgment and order dated 5th April, 2007 passed by the Ad hoc District Judge-1, at Udgir in R.C.A. NO.27 of 2002. The Regular Civil Appeal No. 27 of 2002 is restored to its original file. The lower appellate court is directed to formulate the necessary points for its determination / consideration and adjudicate all those points and decide the same by giving full opportunity to the parties concerned. The lower appellate court is directed to take into consideration 19 the necessary evidence, documents and legal provisions. The parties are at liberty to agitate relevant issues involved in the matter and the lower appellate court can decide the matter itself. With these observations, this Appeal From order is allowed to the above extent and disposed of. Civil application, if any, stands disposed of. Record and proceeding of this case be sent back forthwith to the concerned Court. [ S.S. SHINDE ] JUDGE. ... kadam/* 20 APPEAL FROM ORDER 73 OF 2007 29th OCTOBER, 2010. For approval and signature. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.