1. The parties own adjoining plots of land situate in the village of Soregaon in District Sholapur, the Petitioner being the owner of the plot bearing survey No. 175 and the Respondent being the owner of the plot bearing survey No. 174. Each party alleged that the other had encroached upon his plot of land. This led to disputes between the parties, and ultimately a joint application was made by them to the office of the Cadastral Surveyor to ascertain the boundaries of their respective lands. The survey was carried out by the Survey Officer and a plan was prepared which showed that the Respondent had encroached upon the Petitioner's land to the extent of five acres of land. Thereafter on the application of the Respondent a fresh survey was carried out in 1970 and a new plan was drawn which showed that the Petitioner had encroached upon the land of the Respondent to the extent of sixteen acres of land. According to the Petitioner, while the first survey was carried out after due notice to both the parties, the second survey was carried out without notice to the Petitioner. On the strength of the map prepared in the second survey the Respondent filed a suit in the Court of the Civil Judge, Junior Division, Akkalkot, on deputation at Sholapur, being Regular Civil Suit No. 403 of 1971, praying for possession of the portion which according to the map prepared in the said second survey was encroached upon by the Petitioner. At the trial of the said suit the Respondent produced a certified copy of the map prepared at the time of the second survey. The original of the said map was called for from the Settlement Department and the signature of the Survey Officer and of the District Inspector of Land Records who had verified the said map were got proved by the Respondent by examining another surveyor from the said department. Relying upon the said map the Respondent's suit was decreed. Against this decree the Petitioner filed an appeal, being Civil Appeal No. 114 of 1974, in the District Court, Sholapur. The said appeal was heard by the II Extra Assistant Judge, Sholapur. At the hearing of the said appeal it was contended on behalf of the Petitioner that the said map upon which the trial Court had based its finding had not been properly proved in evidence. Upon this two applications were filed onbehalf of the Respondent requesting the lower Appellate Court to remand the case to the trial Court in case the Court came to the conclusion that the said map had not been proved by proper evidence. The lower Appellate Court pointed out that for what had happened the parties could not be entirely blamed and that had the trial Court refused to admit the certified copy of the map in evidence without the original being properly proved by calling in evidence the survey officer who had prepared it and the District Inspector of Land Records who had verified it, the Respondent would have led the necessary evidence. Accordingly the lower Appellate Court allowed the Petitioner's appeal, set aside the decree appealed against and remanded the suit to the trial Court for further hearing and disposal according to law. The lower appellate Court further directed the trial Court to give to the Respondent an opportunity to call and examine the Cadastral Surveyor and the District Inspector of Land Records to prove the said map or to get the boundary of her land and that of the Petitioner's adjacent land determined by the competent revenue authority by making a proper reference to the said authority. The lower appellate Court further directed that the Petitioner should also be permitted to lead additional evidence only with respect to the dispute relating to the boundary if he so desired and that the trial Court should take a fresh decision in the light of additional evidence that might be brought on the record by both the parties. It is the legality of this decision which is being challenged in this Revision Application by the Petitioner.
2. In Mr. Rege's submission, prior to the coming into force of the Civil P. C. (Amendement) Act, 1976, the only power of remand which a Court of Appeal possessed was under Order XLI, Rule 23 of the Code. Under the said R. 23 where a Court from whose decree an appeal is preferred had disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court could, if it thought fit, by order remand the case, and could further direct what issue or issues shall be tried in the case so remanded. Mr. Rege submitted that in a case where the trial Court had disposed of the suit not upon a preliminary point but upon merits and on all points raised before it, the Code did not envisage a remand by an appellate Court to the trial Court if it found that some evi-dence which ought to have been led was not brought on the record. In Mr. Rege's submission, in such an event the proper procedure for the appellate Court to have followed was the one under Order XLI, Rule 27 of the Code. Under that rule, as emended by this High Court, the parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, in the appellate Court, but if the Court from whose decree the appeal was preferred bad refused to admit evidence which ought to have been admitted, or if the party seeking to produce additional evidence satisfied the appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by Mm at the time when the decree under appeal was passed or made, or if the appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the appellate Court may allow such evidence to be produced or witness to be examined.
3. Relying upon the provisions of the rules above referred to, Mr. Rege, learned advocate for the Petitioner, contended that the lower appellate Court was in error in setting aside the decree passed against the Petitioner. In his submission, the proper procedure for the lower appellate Court to have followed was to have taken additional evidence itself or to have directed the trial Court to take such evidence, but it was not open to it to set aside the decree and remand the suit for a fresh hearing. In support of this submission Mr. Rege relied upon three decisions of this High Court The first was the decision of a Division Bench of this Court in Annaji Ramchandra v. Thakurbai Dattatraya Deshpande, 31 BomLR 208: AIR 1929 Bom 175. In that case the Division Bench held that where a District Court was of opinion that certain findings of fact were necessary for the proper disposal of an appeal and that evidence should be led on those points, the correct procedure for ft was to frame issues and refer them for trial to the trial Court, and the trial Court should then return its findings to the District Court which must rehear the appeal so far as was necessary and dispose it of under Order XLI, Rule 25 of the Civil P. C. The Division Bench further held that in such a case it was not competent to the District Court to reverse the decree and remand the case for disposal under Order XLI, Rule 23 of the Code which only applied to a case where a suit had been decided upon a preliminary point. The other two decisions relied upon by Mr. Rege were of single Judges of this High Court. In Purushottam Dattatraya Shetye v. Yeshodabai Jayadev Shetye. 37 BomLR 203: AIR 1935 Bom 216 Broomfield J., held that though the Court had no doubt an inherent power to remand a case even where Order XLI, Rule 23 of the Code did not apply, provided that the interests of justice required it, the Court had no inherent power to disregard a method of procedure enjoined or provided by the Code and adopt a different one unless it really was necessary in the interests of justice. Broomfield, J., further held that the High Court had power to interfere under its revisional jurisdiction with an order of remand passed by a lower appellate Court which purported to have been made under its inherent jurisdiction but which contravened the express provision of Rule 23 of Order XLI of the Code. The same view was taken by Rangnekar, J., in Motibhai Jesingbhai Patel v. Ranchhodbhai Shambhubhai Patel, 37 BomLR 241: AIR 1935 Bom 222.
4. Mr. Dabir, learned advocate for the Respondent, however, sought to support the order of the appellate Court under Rules. 28 and 29 of Order XLI of the Civil P. C. I am unable to appreciate this argument. The said Rules 28 and 29 have no application to a case where the suit is remanded by an appellate Court to the trial Court for rehearing. Rule 28 of Order XLI of the Code lays down the mode of taking additional evidence when the appellate Court has allowed it to be produced under Rule 27 of Order XLI. Rule 29 of Order XLI provides that where additional evidence was directed or allowed to be taken, the appellate Court is to specify the points to which the evidence was to be confined, and record on its proceedings the points so specified. It is undoubtedly true that in his judgment the learned Extra Assistant Judge has specified the points upon which additional evidence should be led. It is not this part of his order that is, however, quarrelled with by the Petitioner. What is challenged is the earlier part of his order by which instead of directing the trial Court to record additional evidence on the points specified by it and report its findings thereon to it for disposal of theappeal, the lower appellate Court has set aside the decree and remanded the suit to the trial Court for further hearing end disposal.
5. The authorities relied upon by Mr. Rege, learned advocate for the Petitioner, are binding upon me, and in the light of these authorities it must be held that the order of the learned Extra Assistant Judge was erroneous in law. The question, however, which arises is whether sitting in revision I, in the exercise of my discretionary power, should interfere with that order. It is now too well-settled that the exercise of powers under Section 115 of the Civil P. C. is discretionary. It is unnecessary to cite all these cases. In Hari Sheikh v. Dilian Bibi : AIR1933Cal20 , a Division Bench of the Calcutta High Court, after coming to the conclusion that the order made was erroneous in law, refused to interfere with the order in the exercise of the revisional jurisdiction. In that case the order sought to be revised was one granting extension of time for making certain payments provided for in the decree which further provided that in default of payment within the specified time the suit would stand dismissed. After coming to the conclusion that the Court had no jurisdiction to extend the time, the Calcutta High Court refused to interfere with that order in revision on the ground that interference by it would lead to a final dismissal of the suit, causing perhaps irreparable loss to the opposite party and as such amount to a denial of justice to them. The question is whether there are any circumstances before me which would induce me not to exercise my discretion in favour of the Petitioner. The most important circumstance is that what is sought to be assailed before me is a procedural irregularity committed by the lower appellate Court. Today the position in law had completely changed. By the Civil P C. (Amendment) Act, 1976, a new rule, namely, rule 23A, has been inserted in Order XLI. That rule provides as follows:-
'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 rule 23'.
(The underlining is mine)
Thus, had the 1976 Amendment Act been in force on the day when the appeal came to be decided, the order of the learned II Extra Assistant Judge would have been perfectly valid in law. Yet another circumstance which I cannot fail to take into account is that in the cases relied upon by Mr. Rege, learned advocate for the petitioner by the order sought to be revised an injustice had been caused to the applicant. In the case before me no injustice has been caused to either party. The plaintiff, who obtained the decree and whose decree was set aside and the suit remanded and who is the Respondent before me is supporting the order. The order is being challenged by the defendant, who is the Petitioner before me, against whom the decree for possession was passed, which decree was set aside. Both parties are given the right to produce additional evidence. Mr. Rege, learned advocate for the Petitioner, was unable to point out to me any prejudice which was or could possibly be said to have been caused to the Petitioner. In these circumstances, I refuse to interfere with the order of the learned II Extra Assistant Judge.
6. In the result, I dismiss this Civil Revision Application end discharge the rule.
7. In view of the fact that the orderof the appellate Court was erroneous inlaw and it came to be passed on the application of the Respondent to the lowerappellate Court, the Respondent will payto the Petitioner the costs of this CivilRevision Application.
8. Application dismissed.