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Kalipada Dinda and ors. Vs. Kartick Chandra Hait and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4161 of 1969
Judge
Reported inAIR1977Cal3
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 41, Rules 23, 27 and 28
AppellantKalipada Dinda and ors.
RespondentKartick Chandra Hait and ors.
Appellant AdvocateSusanta Kumar Kundu, Adv.
Respondent AdvocateBasanta Kumar Panda and ;Santimoy Panda, Advs. for Opposite Party No. 1
DispositionRevision allowed
Cases ReferredParsotim Thakur v. Lal Mohar Thakur
Excerpt:
- .....nos. 1 to 7 of the original suit against the decision of a subordinate judge, midnapur in a first appeal remanding the case back to the trial court of the munsif for the rehearing of the suit.2. the opposite party-plaintiff kartick hait brought the original suit against several defendants for declaration of his title to some of the properties mentioned in the plaint and for partition of the suit properties, separate possession, mesne profits and permanent injunction. of the defendants only the petitioners before this court filed written statements and contested the suit challenging the allegations of the plaintiff. the trial court on consideration of the evidence disbelieved the evidence adduced on the side of the plaintiff and rejected the story that the plaintiff had any title to the.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This revisional application is by the defendants Nos. 1 to 7 of the original suit against the decision of a Subordinate Judge, Midnapur in a first appeal remanding the case back to the trial Court of the Munsif for the rehearing of the suit.

2. The opposite party-plaintiff Kartick Hait brought the original suit against several defendants for declaration of his title to some of the properties mentioned in the plaint and for partition of the suit properties, separate possession, mesne profits and permanent injunction. Of the defendants only the petitioners before this Court filed written statements and contested the suit challenging the allegations of the plaintiff. The trial Court on consideration of the evidence disbelieved the evidence adduced on the side of the plaintiff and rejected the story that the plaintiff had any title to the disputed lands as alleged and held the contesting defendants' case as acceptable. The learned Munsif dismissed the suit. In the appeal taken by the plaintiff, the learned Subordinate Judge found insufficient evidence on the question of a previous partition set up by the defendants for any decision although he did not consider all facts and circumstances. According to him, there was no decision on issue No. 6 and the trial Court came to a decision on the question of title and possession without any issue in that respect. The learned Subordinate Judge passed order for remand for the learned Munsif to rehear the suit giving an opportunity to the parties to adduce further evidence. Against this order for remand, the present application under Section 115 of the Code of Civil Procedure has been filed.

3. I have heard Mr. Kundu, the learned Advocate for the petitioner and Mr. Panda for the plaintiff-opposite party.

4. Mr. Panda on behalf of the opposite party has raised a preliminary objection that the present revisional application is not maintainable and that an appeal ought to have been filed against the decree passed by the appellate Court below.

5. There is the provision for remand of a case by the appellate Court in Order 41, Rule 23 of the Code of Civil Procedure. When a suit is disposed of on a preliminary point and the decree is reversed in appeal the appellate Court may by order remand the case to the lower Court for determination of the suit as indicated in that Rule 23. Against that order of remand an appeal lies according to Rule 1 (u) of Order 43 of the Code. In this connection Mr. Panda has argued that in the present case the First Appellate Court drew up a formal decree and the same was signed. According to him a second appeal ought to have been filed in this Court. I cannot accept this contention. First of all, the order of remand passed by the appellate Court below was not under Rule 23 of the C. P. Code. The trial Court decided the suit not on any preliminary point but on all issues framed considering the questions of law as raised before him and the evidence on record. Therefore, when the appellate Court sent back the case on remand for fresh decision on questions of law and fact, it cannot be an order of remand under Order 41, Rule 23.

6. Next, Rule 23 provides for an order of remand and not for any decree. 'Decree' has been defined in Section 2(2) of the Code of Civil Procedure- A decree is the formal expression of the conclusive determination of the rights of the litigants. In the appeal below there was no determination of the rights of the parties but the matter was simply sent down on remand for decision of the suit on merit. There was no occasion for the appeal Court below for drawing up of any decree. There was simply an order for remand that was passed. When the decree was formally drawn up, though not necessary, it was of no effect. Therefore, there can be no question of filing any second appeal. The decision of a Division Bench of the Patna High Court in Chandrika Prosad Singh v. Mithu Rai reported in 103 Ind Cas 722 (723) = (AIR 1927 Pat 296) may be mentioned. It was held:

'Order XLI, Rule 23, operates only when one of the preliminary issues is tried by the Court of first instance and that Court disposes of the suit on that ground and says he is not going to try the suit on any other issues.'

Further the judgment says:

'A decree is defined in the Civil Procedure Code as the formal expression of the adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Now, in this case the learned Judge in the Court below has not determined the rights of the parties either conclusively or otherwise or at all. All that he has done is to hold that the rights of the parties cannot be decided until certain important matters are decided. He has, therefore, left them very much at large. In my opinion, therefore, the order of the learned District Judge cannot be looked upon as a decree within the meaning of that term as used in Section 2 of the Code of Civil Procedure.'

The Division Bench decision of our Court should also be noticed in the case of Banka Behari Deb v. Birendra Nath Dutta reported in 103 Ind Cas 864 = (AIR 1927 Cal 850). Regarding Order 41, Rule 23 we find in the judgment:

'It is abundantly clear that the order of remand as made was passed without jurisdiction, because the learned Munsif who tried the case did not determine the case upon a preliminary issue, but heard And decided the suit upon the merits. The condition precedent, therefore, to the exercise of the power of remand with which the Court is invested under Order XLI, Rule 23, was not fulfilled, and the order of remand as made could not validly have been passed under Rule 23, and was ultra vires the Court that passed it. The result is that no appeal lies from the order as made, for, under Order XLIII, Rule 1 (u) an appeal only lies if the order of remand has been passed under Order XLI, Rule 23.'

As to the character of the order for remand the decision goes on to say:

'Again, the order for remand as made, in my opinion, did not itself finally determine all or any of the matters in controversy between the parties, and it was not a decree within Section 2 of the Code of Civil Procedure; therefore no appeal Jay from this order of remand as being a decree within Section 100 of the Civil Procedure Code.'

7. There is another provision in Order 41, Rule 25 of the C. P. Code for limited order for remand. According to this Rule specific issues are sent to the Court below for a finding keeping the appeal in file of the appellate Court for decision. On receiving the finding from the lower Court, the appellate Court is to determine the appeal under Rule 26 of Order 41. Against the order passed under Rule 26 for remitting certain issue or issues for decision, no appeal lies. The present order for remand under my consideration does not come under the purview of Order 41, Rule 26 of the C. P. Code.

8. An order for remand may also be passed by the appellate Court under its inherent power under Section 151 of the Code of Civil Procedure and in that case no appeal lies against that order. Of course, a revisional application may be filed before the High Court against such an order passed by the District Judge or the Subordinate Judge in the first appeal. There can be no doubt that the order for remand passed by the learned Subordinate Judge in the present case was one under Section 151 of the C. P. Code. Before passing the order for remand, the appellate Court below said, 'In the circumstances to meet the ends of justice, I deem it a very fit case to be remanded to the learned Munsif for a rehearing in the light of the observations made above and according to law.' In this view of the matter, no appeal lay against the order for remand passed under the inherent power for ends of justice as felt by the learned Subordinate Judge. The present application under Section 115 of the Code of Civil Procedure against that order is quite legal. The preliminary objection as to the maintainability of the re visional application against the order for remand is rejected.

9. The main grievance of the petitioners is that the appellate Court below acted without jurisdiction or acted illegally with material irregularity by not deciding the appeal on merits on consideration of the findings and judgment of the trial Court and by tending the case for fresh hearing giving an opportunity to the plaintiff for adducing further evidence to make up the deficiency in his case. In this connection it has been contended that the learned Subordinate Judge failed to notice that issue No. 6 was decided by the trial Court. In the judgment of the trial Court the issue No. 6 has been mentioned with other ones and it has been made clear that the learned Munsif considered issues Nos. 6 and 7 together and gave his decisions thereon. The learned Court below perhaps missed the point in the judgment.

10. The learned Subordinate Judge says in his judgment that the trial Court without framing any issue found that the plaintiff had no title and possession in the suit land. It appears that several issues were framed in this suit. The plaintiff alleged his title and possession in the suit properties. The contesting defendants claim their title and possession and also referred to a former partition. Both the parties in this case knowing the cases of the adversaries led evidence !o prove their own cases and to disprove the case of the opponent. One of the issues is 'Is the kobala dated 16-7-1934 void, collusive and for no consideration This relate? to the question of title. Moreover, it appears that the plaintiff brought in evidence several other deeds of conveyance to support his title and possession. It appears that both the parties attempted by producing evidence to prove their respective title and possession in the suit properties as alleged in their own pleadings. Although there was no specific issue mentioning title or possession but the issues were broad and general to embrace all the disputes between the parties. It appears also that the learned trial Court focussed its attention to the evidence of title and possession adduced by the parties and their contentions. It was, therefore, not necessary for reconsideration by the trial Court of the suit on merit again after giving any opportunity to any party to lead further evidence. Such opportunity will give undue and improper chance to the parties to make up their weakness or deficiencies in the evidence after the discussion of the evidence by the trial Court in its judgment. The parties had sufficient opportunity to prove their cases by evidence. Moreover, in the first appeal by the plaintiff, there was no ground that the plaintiff had no opportunity to adduce evidence or that he was prevented from proving his title or possession being misled by the framing of issue. The appellate Court below should have decided the appeal on the evidence on record according to law. I do not think that in the facts find circumstances there was any valid reason to pass any order for remand as has been done in this case. The learned Court below allowed the parties while remanding case to adduce further evidence or the ground that there was insufficient evidence. Mere insufficiency of evidence is no ground for allowing any party to adduce further evidence when the dispute is lying in appeal. For additional evidence, we may consider Order 41. Rule 27 and 28 of the C. P. Code. The present case does not come under those provisions. If there is insufficient evidence for any party to prove his case, he will suffer. For getting an order to adduce further evidence, a party must come under a provision of law. The Court must not act in such a way as to cause undue advantage against any party and contrary to law. Further evidence should not be allowed to be adduced by a litigant who has been unsuccessful in the lower Court to patch up the lacuna or the weakness in his case. This practice beyond law will result in manufactured evidence and abuses of the processes of Court. This principle of not allowing undue advantage to adduce further evidence has been indicated by the Privy Council in the case of Parsotim Thakur v. Lal Mohar Thakur reported in AIR 1931 PC 143 = 132 IC 721 = 35 Cal WN 786 Clearly, the appellate Court below illegally allowed parties to adduce further evidence in his remand order. Practically speaking, the learned Subordinate Judge refused to exercise his jurisdiction in the first appeal by sending back the case to the trial Court for rehearing and by not deciding the appeal on evidence on record according to law. In any view, the learned Court below acted illegally and with material irregularity by passing the remand order as he did causing a grave error of law and an improper decision. It is liable to be set aside.

11. Hence, the revisional application succeeds and the Rule is hereby made absolute without any cost. The judgment with order for remand complained against is set aside and the learned appellate Court below shall dispose of the appeal in the light of this judgment and according to law. The appeal is long pending and it should be disposed of as expeditiously as possible.

12. Send down the records at once.


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