Skip to content


Walaiti Ram and anr. Vs. Thakur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberS.A.F.O. No. 50 of 1968
Judge
Reported inAIR1973P& H349
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rules 23, 24, 25, 26, 27 and 28
AppellantWalaiti Ram and anr.
RespondentThakur Singh and ors.
Cases ReferredS. Sohan Singh v. Oriental Bank of Commerce
Excerpt:
.....amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal..........rule 23-a, order 41, as amended by the punjab high court reads:-- '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 retrial is considered necessary, the appellate court shall have same powers as it has under rule 23.' 3. a plain reading of rule 23-a shows that the decree has first to be reversed by the appellate court and then the question arises whether a retrial of the suit is necessary. in other words, the decree, as appears to have been done in this case, cannot be reversed for the sake of remanding the case. it is pertinent to note that a similar amendment of rs. 23 of order 41, civil procedure code was made by the madras high court which in its decision subramanian.....
Judgment:

1. Brief facts of the case for deciding this appeal are that Smt. Malan Widow of Kahan Chand made alienation with regard to her estate to defendants Nos. 1 to 14 and with respect to the rest she made will Exhibit D. 1 in favour of Rikhi Ram and Durga Dass defendants Nos. 18 and 19 sons of her brother Ram Dhan. The will and the alienation were challenged by Walaiti Ram and Dharam Pal sons of Rikhi Ram son of Atma Devi Second wife of Kahan Chand. Upon a consideration of the evidence on record, the trial Court held:--

(1) Smt. Malan was the absolute owner of the disputed property and therefore entitled to make the will and the alienation with respect to it: and

(2) Will Exhibit D. 1 dated 12th July, 1962 executed by Smt. Malan was valid.

2. In the result, the trial Court dismissed the suit, Feeling aggrieved the, plaintiffs preferred an appeal. Before the Additional District Judge, only the decision of the trial Court as to the validity of the will was assailed and he remanded the case on the following grounds:--

'Bishan Dass scribe D.W. 1 has deposed that the draft of the will was taken to him that Rikhi Ram respondent was present and that he made the payment to him. Sh. Jaswant Singh Sub Registrar D.W. 2 Boor Singh D.W. 3 has deposed that Maghi Ram had told the name of Smt. Mallan, Maghi Ram has since died. Hakam Singh has not been examined. On the basis of evidence on record, it cannot be said with certainty if the will was executed actually by Mst. Mallan. The parties did not make any attempt to prove if the will Ex. D. 1 was actually thumb marked by her, although it has been represented that such evidence could be led. Thus the proper evidence for coming to a clear finding in respect of the due execution of the will and its validity is lacking.

In view of what has been stated in the foregoing para this appeal is allowed. The judgment and decree of the trial Court are set aside. The case is sent back to the trial Court for allowing Rikhi Ram and Durga Dass respondents to lead evidence to show if the will Ex. D. 1 was thumb marked by Mst. Mallan and also to examine Hakam Singh, the other witness of the will. IF they do not produce this evidence the other interested parties in the case may be allowed to do so...................... Thereafter, the trial Court should decide the case afresh taking into consideration the evidence already on record and the evidence recorded hereafter.'

Rule 23-A, Order 41, as amended by the Punjab High Court reads:--

'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 retrial is considered necessary, the appellate Court shall have same powers as it has under Rule 23.'

3. A plain reading of Rule 23-A shows that the decree has first to be reversed by the appellate Court and then the question arises whether a retrial of the suit is necessary. In other words, the decree, as appears to have been done in this case, cannot be reversed for the sake of remanding the case. It is pertinent to note that a similar amendment of Rs. 23 of order 41, Civil Procedure Code was made by the Madras High Court which in its decision Subramanian v. Kaliammal (1968) 2 Mad LJ 548 held:--

'Before an appellate Court can remand a matter for fresh disposal to the lower Court under order 41, Rule 23, first it must come to a conclusion that the decision of the trial Court is liable to be reversed or set aside. In the absence of such a conclusion a power of remand is not available to an appellate Court. Thus where a remand order is passed whether in a case where a suit has been disposed of upon a preliminary point or in a case where a suit has been disposed of on merits, the condition precedent for the exercise of the power of remand is a finding by the appellate Court that the judgment and decree of the trial Court are erroneous on facts or on law and therefore liable to be reversed or set aside. So long as that finding has not been arrived at there is no scope for the appellate Court reversing or setting aside the judgment and decree of the trial Court and as consequence thereof remanding the suit for fresh disposal.'

I am in respectful agreement with the view quoted above.

4. Another aspect of the matter is that rules 24, 25, 26, 27, and 28 of Order 41, deals with the other relevant powers of an appellate Court. Rule 24 provides that where the evidence on record is sufficient to enable appellate court to pronounce the judgment. The appellate Court may after resettling the issues if necessary, finally determine the suit even if the trial Court proceeded wholly on some other ground. Rule 25 empowers the appellate Court to frame issues and refer the same for trial Court from whose decree the appeal is preferred directing the trial Court to take additional evidence. Under Rule 25 also the appellate Court has not to reverse the decree of the trial Court but it has to receive the evidence recorded by the trial Court with its finding thereon. Rule 26 lays down that within the time to be fixed by the appellate Court, the parties may present their objections to the findings of the trial Court. After the expiration of the period fixed for the filing objections, the appellate Court has to proceed to determine the appeal. In the scheme then comes Rule 27 which empowers the appellate Court to allow additional evidence for the following reasons:--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the appellate Court requires any document to be produced or any witness to be examined to able it to pronounce judgment or for any substantial cause. Sub-rule 2 makes it imperative for the appellate Court to record its reasons for admission of additional evidence. Rule 28 provides for the mode of taking additional evidence. Before the proceedings further it may be clarified that after the coming into force of the amended Rule 23-A quoted above, the question of ordering remand in the exercise of its inherent powers under Section 151, Civil Procedure Code, by an appellate Court does not arise vide Mahendra Manilal v. Sushila Mahendra AIR 1965 SC 364 laying down:-- 'Inherent powers can be availed of Ex Debitio Justitiae, only in the absence of express provisions in the Code.'

In view of the above it is clear that the powers of an appellate Court for recording additional evidence are regulated by the rules mentioned above. This object cannot be allowed to be achieved by having recourse to remand of the case, If that were so, this will not bring about harmonious construction of the rules mentioned above, vide Annamalai v. Narayanaswami Pillai (1971) 2 Mad LJ 330=(AIR 1972 Mad 316).

5. A plaint reading of the reasons given by the learned Additional District Judge, quoted above, shows that the remand of the case was ordered with the object of getting additional evidence on record. The contention of the learned counsel for the defendants that because the impugned order gives wide scope for all the parties to the suit to lead evidence relating to the validity of the will Exhibit D. 1. therefore it is a just order has not impressed me inasmuch as the remand order has to satisfy the provisions of rule 23-A. It deserves mention again that the duty of the Additional District Judge was on the strength of certain reasons to first come to the conclusion that the decree of the trial Court was liable to be reversed or set aside. Having come to that conclusion, the next question to be decided by him was whether the remand was necessary.

6. Learned counsel for the defendants placed reliance on a Division Bench decision of this Court in S. Sohan Singh v. Oriental Bank of Commerce, (1956) 58 Punj LR 355=(AIR 1956 Punj 215). In that case another Division Bench of this Court allowed R. F. A. 27-D of 1952 and remanded the case under Rule 23-A of O. 41, Civil Procedure Code. Thereafter Sohan Singh appellant applied for the refund of the Court fee paid by him. The reported decision relates to the application for the refund of the court fee. Following observations of the learned Judges at Page 356 were pressed by the learned counsel for the defendants:--

'This Court held that the plaintiff was entitled to produce and prove certain documents. The Court also found that the evidence of a certain witness would have helped in coming to a 'Correct decision on the dispute involved in the case.' and therefore this Court also directed that this witness be examined. It was also observed 'both parties are allowed to produce all documents on which they rely and such oral evidence which they consider relevant. This involves retrial of the suit and I think in the interests of justice this should be allowed.' In other words, it shows that there was no proper trial of the suit and therefore the decree has to be set aside and the case remanded for retrial.'

7. Learned counsel for the defendants tried to bring the case in hand at part with R. F. A. 27-D of 1952. It may be pointed out that as the R. F. A. was from Delhi, its judgment in spite of search is not available. All the same, I have no doubt in my mind that as observed by the learned Judges that the c case remanded because there was no proper trial of the suit. In other words, on account of that defect along with others mentioned in the quotation, the learned Judges had to set aside the decree for the trial Court. Coming now to the case in hand, there is no such indication in the impugned order. On the other hand, what is clear is that the decree of the trial Court has been set aside by the impugned order with the object of remanding the suit. This action is not only contrary to the spirit but also the letter of Rule 23-A. Hence it cannot be allowed. Accordingly I accept the appeal, set aside the impugned judgment and remand the case to the lower appellate Court for decision according to law. The parties are directed to appear there on 6th December 1972, No order as to costs.

8. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //