1. This appeal from Order is filed by the appellant who is the original plaintiff and who has constructed a theatre in the name of I-alit Mahal at Kaligam, Sabarmad, Ahmedabad.
2. The case of the appellant-plaintiff, in short, was that he had purchased 3, 025 square yards of land out of the land bearing survey No. 256, situated in the Sim of village Ranip, from one Prabhudas Keshavdas Patel, for the purpose of constructing a cinema theatre. Before constructing the said cinema theatre, the plaintiff had applied for 'No Objection certificate and, therefore, the public notice was erti issued by the Commissioner of Police in the newspaper. Thereafter, 'No objection' certificate was granted to the appellant plaintiff, and the said land was also allowed to be converted into non-agricultural use. When the theatre was ready, the plaintiff applied for electric connection from the Electricity Company, as well as for supply of water connection from the Municipality. When the electricity Company's men tried to install the cables for the electric connection, the employees and servants of the Food Corporation of India (respondent-defendant) obstructed them from passing-through the Asphalt road leading to the cinema theatre of the plaintiff, on the ground that the said road was of the ownership of the defendant Corporation alone and the same was purchased by them and the plaintiff was not entitled to use the said strip of land. According to the plaintiff, this was the only approach road to go to the cinema theatre premises, and that the plaintiff and his predecessors-in- title were using the said road since a number of years, and thus they had acquired easement rights over the said road, and under the circumstances, the defendant-Corporation had no right to obstruct the plaintiff or his servants from going to and coming from the theatre by the said road.
3. No doubt, in the plaint, the plaintiff has not admitted that the defendant-Corporation had become the owner o~ the adjoining land and the said road. The contention was that originally there was a railway line and a culvert and that the plaintiff and other persons were using the said road since a number of years, and have acquired a right of easement over the said land and, therefore, the defendant Corporation cannot obstruct the plaintiff from exercising that right.
4. In reply to the aforesaid averments of the plaintiff, the defendant-Corporation had in terms stated in Para 11 of its written statement, which has not been correctly reproduced by the appellate Court in its judgment, as under:-
'The alleged land on which plaintiff claims the right of easement belonged to the Railways and was relinquished by the Railways for the Food Department in .1963-64 for our constructions (Road, go downs, etc.) on condition that the formalities of payment of handing-over, taking over could be carried out at later stage since it was a transaction between Government to . Government. Thereafter, the Food Corporation of India became the owner of this land on 1-3-1969. That the Food Corporation of India is an undertaking established by the ' Act of Parliament in 1964 and has taken over the functions that were being done or carried out by the Department of Food, Government of India have been taken over by the Food Corporation of India. 'It is also in evidence that the defendant Corporation had wrote a letter by which it obstructed the user of the suit land by the plaintiff. On account of the aforesaid obstruction created by the defendant, the plaintiffs have filed the suit, being Regular Civil Suit No. 188 of 1972 in the Court of the learned Joint Civil Judge, Junior Division, Narol, for a permanent injunction restraining the defendant-Corporation from obstructing the plaintiff and his servants from using the, said road.
5. It appears that having regard to the written statement filed by the defendant Corporation claiming ownership of right over the said land and the road, no issue was sought by the plaintiff regarding ownership. The trial Court has framed as many as 10 issues regarding the user of the land by the plaintiff, stoppage of user for more than three years prior to the filing of the suit, limitation, etc., which are relevant for the purpose of deciding the controversy between the parties. No issue has been raised, whether the Union of India, original owner of the suit land, is a necessary party, since no dispute has been taken by the defendant who claimed the ownership over the strip of land, and the plaintiff also did not press for such issue.
6. The trial Court, after recording the evidence, came to the conclusion that the plaintiff has established his right of easement and that there is no other way for approaching the cinema theatre in question, etc., and decreed the suit of the plaintiff and granted permanent injunction restraining the defendant Corporation from obstructing the plaintiff, his men and persons going to the said theatre on foot or by whatever vehicle.
7. The defendant-Corporation. being aggrieved by the said judgment and decree, filed an appeal being Civil Appeal No. 100 of 1978, in the Court of the learned Extra Assistant Judge, Ahmedabad (Rural) at Narol. Before the appeal was heard, the defendant Corporation gave application dated 29-7-1981 seeking amendment in the written statement to the effect that the suit was bad for non joinder of parties, as it transpired from the averments in the plaint that the case of the plaintiff was that the suit property originally belonged to the Union of India. If the land is alleged to originally belong to the Union of India. the said owner should be impleaded as a party and as a co-defendant. Since the plaintiff has not impleaded Union of India as a party to the suit, the suit is bad for non-joinder of parties. Other amendments were also sought, but the same have not been considered by the learned appellate Judge for remanding the matter, and hence I do not consider it necessary to discuss the same.
8. The said application for amendment appears to have been heard along with the appeal by the learned Extra Assistant Judge, who has framed the following points for determination:
'(1) Whether the appellant?defendant proves that the learned Judge has erred in concluding that respondent?defendant had acquired right purporting to be a right of easement over the land of appellant's ownership.
Though he has framed the point for determination regarding the merits of the findings of the learned trial Judge, he was led away by the application Ex. 37, for amendment of the written statement by the defendant Corporation. The learned appellate Judge has observed:
'....Specific averment is made to raise the point that suit is bad for non?joinder of necessary parties mainly on the ground that the respondent? plaintiff asserts the ownership of the land to be of Government of India, while as a matter of fact the land is owned by the appellant?defendant and for which evidence is led
In para 8, the learned appellate Judge has observed:
'... ... When a person claims a right of easement, the basic characteristic is that a person claiming a right of easement must unequivocally admit ownership of the person in whose land or place, the right is claimed. 'Then he has discussed the merits of, the application for amendment, and ultimately observed as under:
'......I, therefore, deem it just that the matter be remanded back to the lower Court to consider the prayer of the appellant defendant whether the amendment to be not allowed, and if allowed, issue be raised as to whether the respondent?plaintiff is able to prove the right of easement over the land owned by the appellant?defendant, and further to consider if the Union of India would be a necessary party, and after having raised proper issues in that context, to decide the suit on merits, by permitting both the parties to lead further oral or documentary evidence confined to the new issue and to decide the issue in accordance with law.
However, in spite of the above observations, the final order passed by the learned appellate Judge is as under:
Appeal is allowed and the judgment and decree are set aside and the matter is remanded back to the lower Court to consider the application for additional written state affidivent and to raise and decide the issue and decide suit in accordance with law.
9. In spite of the assistance of the Advocates of both the sides I am still not able to understand as to what has been decided by the learned appellate Judge. Though application for amendment of the written statement has been made, the said application is neither allowed nor rejected, and in the body of the judgment it is stated by the learned appellate Judge that the lower Court shall consider the prayer of the defendant Corporation for the amendment of the written statement however, in the operative part of the order, he has directed the lower Court to consider the application for additional written statement and to raise and decide the issue and decide the suit in accordance with law. In my opinion, the learned appellate Judge has committed a serious error of procedure and without deciding the application for amendment on merits he has set aside the decree passed by the trial Court on merits and remanded the whole case,
10. Mr. D. D. Vyas learned Advocate for the defendant- Corporation, contended that the learned appellate Judge had power to reverse the decree and remand the case under the provisions of 0. 41, R 23-A of the Civil P.C., 1908 (hereinafter referred to as the Code). However, Mr. Vyas was not in a position to explain how the learned appellate Judge can set aside the judgment and decree of the trial Court, firstly, without allowing the amendment and secondly, without deciding as to whether the Union of India is a necessary party or not. Even if the Union of India is found to be a necessary party, how the judgment and decree obtained on merits can be reversed without giving a finding that the same is not in accordance with the proved facts or law.
11. So far as the powers for remand are concerned, there are three provisions in the Code, viz. 0. 41, R. 23, 0.41. R. 23-A and 0. 41, R. 25. 0. 41, R. 23 of the Code can be resorted to only when the trial Court has disposed of the whole suit on a preliminary point and the decree of the trial Court is reversed on merits by the appellate Court and, therefore, the suit should be remanded for trial of other issues.
12. So far as 0. 41, R. 25 of the Code is concerned, it can- only be invoked when the appellate Court feels that the trial Court 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. In such a case, the whole suit is not remanded, but necessary issues are to be framed and the same are to be referred for trial to the trial Court with a direction to take additional evidence, if required', and to return the evidence to the appellate Court together with its findings thereon and the reasons thereof. In such cases, the judgment of the trial Court is kept intact and the finding is invited only on the additional issue framed by the appellate Court.
13. Now, 0. 41, R. 23-A of the Code has been inserted by Amendment Act of 1976. it is material for our purposes and it 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 re-trial is considered necessary, the appellate Court shall have the same powers as it has under R. 23.-
A mere reading of this R. 2-3-A shows that in a case where R. 2-3 or 25 is not 'applicable, and when the appellate Court reverses on merits the decree passed by the trial Court, and on reversing the decree, if the appellant. Court finds that remand is necessary, which. may be on various reasons, e.g. supposing evidence which has been recorded is inadmissible in evidence. in the opinion of the appellate Court, or where 'there is change in law arid fresh trial becomes necessary or that on account of the decision of the appellate Court some lacuna or contingency arises, which requires rent and. there may be circumstances where the appellate Court finds that the suit cannot be properly despond of, and in rare Cases the appellate Court can remand the whole suit subject to all just exceptions for trial to the trial Court.
14. Now, in the instant case, R. 23 cannot be made applicable because the suit was decided on all issues. The teamed appellate Judge has not remanded the suit under R. 25 by framing the additional issue. As contended by Mr. Vyas, the suit has been remanded under 0. 41, R. 23-A of the Code without allowing the amendment and without considering the merits of the case, and by merely reversing the decree. This, in my opinion, is not in accordance with the provisions of R. 23-A. Such a curious procedure followed by the learned appellate Judge could not be supported even by Mr. Vyas.
15. If we read the application for amendment of the written-statement, the defendant-Corporation has not stated that the Union of India is the owner of the suit land. The defendant-Corporation has also not explained as to how the Union of India is a necessary party if the Union of India is not the owner of the suit land. The application itself raises contradictory claims. Unless specific averment is made that the defendant Corporation was not the owner, but the Union of India was the owner and, therefore, the Union of India was a necessary party, something could have been considered. But on such a vague application raising the contention that the Union of India is a necessary party, 'the learned appellate Judge set aside the decree of the lower Court without giving any finding on the said application, which in my opinion, is a very serious error of law and procedure.
16. Mr. S. D. Shah, learned Advocate for the appellant-plaintiff has drawn my attention to the provisions of 0. 1, R. 13 of the Code. which reads:
'all the objections on the ground of non-joindar or mis joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived..
This provision, in my opinion, is mandatory. It provides that if such objection is not taken, it shall be deemed to have waived. Therefore, the learned appellant Judge ought to have considered that in view of the provision of that deeming fiction the defendant Corporation has waived the objection regarding non-joindar of party, though, in my opinion, there is no merit in such a contention. however, the learned appellate Judge without deciding the merits of the application, set aside the decree which was in favour of the plaintiff and remanded the case to the trial Court. This is clearly in violation of the provisions of 0. 41, R. 23-A of the Code and, therefore, the judgment and decree of the appellate Court requires to be set aside.
17. Mr. S. D. Shah relied on the decision of the Bombay High Court in Y. G. Charan v. Parvatibai (1972) 74 Bom LR 845. In that case, during the examination of the plaintiff, the defendant applied for amendment of the written statement raising a new plea that the suit is bad on the ground of non-joinder of some parties. The learned Judge after considering provisions of 0. 1, R. 13 of the Code, held as under:
'.....I am afraid, in view of the provisions of O. 1, R. 13 of the Civil P. C. it is not open to me to grant such an amendment, once issues have been framed by me. As their ready have been in the present case. 0. I, R. 13, Civil P. C. enacts in mandatory terms, not only that objections on the ground of non-joinder must be taken at the earliest possible opportunity, but that they must be taken in all cases where issues are settled at or before such settlement, unless the ground of objection has arisen subsequently thereto.' On the aforesaid ground, the application of the defendant in that case for amendment of the written statement was rejected.
18. I think, the ratio of the said decision is applicable to the facts and circumstances of the instant case. In that case, the amendment was disallowed before the evidence was completed, whereas in the instant case, the learned appellate Judge entertained the application after the decree had been passed, and without deciding such application for amendment, the learned appellate Judge set aside the decree of the trial Court to enable the defendant-Corporation to press such application before the trial Court. In my opinion, the learned appellant Judge hits committed a grave error of law and procedure. Such an amendment, which indented to have been waived by the defendant, cannot be allowed at the appellate stage. And there is no Warrant for the proposition that without allowing such application the decree can be set aside by the appellate Court. The finding of the appellate Court, therefore, suffers from very serious error of law and procedure.
19. In view of the discussion made above, the appeal from order is allowed. The judgment and order of the learned Extra Assistant Judge, Headband (Rural) at Karol, in Civil Appeal No. 100 of 1978 passed on 30-9-1981 are set aside, and he is directed to decide the said appeal on merits in accordance with law. The respondent-Corporation to pay the costs of this appeal to the appellant.
20. Appeal allowed.