Akil Ahmedbhai Hirani vs State Bank Of India

Dr A. P. Thaker, J

This civil revision application has been filed by the applicants - original plaintiffs challenging the impugned judgment and order dated 4th June 2019 passed in Regular Civil Appeal No.46 of 2017 (Old Regular Civil Appeal No.4 of 2013) passed by the learned C/CRA/463/2019 JUDGMENT Additional District Judge, Visavadar (hereinafter be referred to as "the Appellate Court) whereby the Appellate Court has, without entering into merits of the case, remanded the matter back to the Trial Court for framing and deciding the issue that "whether the delay is caused in filing the suit by the applicants or not?" with other directions.

Brief facts of the present case are that the rent suit filed by the present applicants against the respondents was partly allowed and as the rented premises was taken back by the defendants no decree regarding the possession was passed. However, the said suit was allowed against the respondent - Bank for paying arrears of rent as well as mesne profits thereof. Against that order, respondents herein - original defendants have preferred Regular Civil Appeal No.46 of 2017 (Old Regular Civil Appeal No.4 of 2013). The matter came to be remanded back by the Appellate Court by passing the impugned judgment and order dated 4th June 2019 inter alia observing that the issue of limitation is required to be decided and the same could be decided by the Appellate Court itself but considering the fact that if Appellate Court decides then one of the appeal stage would be lost to the defendants and, therefore, on that basis, the Appellate Court has remanded back the matter to the Trial Court for deciding the issue of limitation.

Heard Ms.Mariya Dalal, learned advocate for the applicants and Mr.D. K. Nakrani, learned advocate for the respondents. Perused the materials placed on record.

Ms.Mariya Dalal, learned advocate for the applicants has submitted that there is no justification for the Appellate Court to remand back the matter to the Trial Court with a view to decide the issue of limitation. While referring to the impugned judgment and order of the Appellate Court, learned advocate for the applicants has submitted that in view of the power of the Appellate Court C/CRA/463/2019 JUDGMENT contained in Order 41 of the Civil Procedure Code, 1908 (hereinafter be referred to as "the CPC"), the Appellate Court could have decided the issue of limitation without remanding back the matter to the Trial Court. Learned advocate for the applicants has submitted that the Appellate Court has failed to exercise its jurisdiction and, therefore, the impugned judgment and order of the Appellate Court is liable to be quashed and set aside and the appeal is required to be restored to the Appellate Court and the Appellate Court may be directed to decide and dispose of the same on merits and on legal aspects. Learned advocate for the applicants has prayed to allow the present civil revision application.

Per contra, Mr.D. K. Nakrani, learned advocate for the respondents has submitted that the Appellate Court has not committed any serious error of law and facts and it has rightly remanded back the matter to the Trial Court as if the Appellate Court decided the point of limitation then one of the valuable rights of the appeal would be lost to the defendants. He has supported the impugned judgment and order of the Appellate Court and has prayed to dismiss the civil revision application.

It is worthwhile to referred to the provisions contained in Order 41 regarding the powers of the Appellate Court especially Order 41 Rule 23, which empowers the Appellate Court to remand the matter back to the Trial Court. Order 41, Rule 23, 24 and 28 which read as under:-

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 C/CRA/463/2019 JUDGMENT to re-admit the suit under its original number in the register of civil suits, and proceed to 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. - 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 Appeal Court shall have the same powers as it has under rule 23.]

Where evidence on record sufficient, Appellate Court may determine case finally - Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

Mode of taking additional evidence. - Where additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

Order 41, Rule 23 empowers the Appellate Court to remand the case only where the Lower Court has disposed of the suit upon a preliminary report. Rule 23 also empowers the Appellate Court in a conditions narrated therein to remand the matter. Now, it is well settled by the catena of decisions that the "preliminary point" in Rule 23 may relate to the fact or law. The expression "preliminary point" does not mean the same thing as a "preliminary issue". It is well settled that the suit may be held to be disposed of on a preliminary point which may be any of the following grounds:

(i) That the suit is barred by res judicata.

(ii) That the suit is barred by limitation.

(iii) That the suit is barred by any other rule of law.

(iv) That the document on which the suit is based is inadmissible in evidence.

(v) That the plaintiff is estopped from providing his case.

(vi) That the plaintiff has no cause of action.

(vii) That the suit is bad for defect in the description of the defendant.

(viii) That the matter is concluded by a valid award.

(ix) That the case raised at the hearing is different from that raised in the plaint.

(x) That the suit has abated.

It is also well settled that the inherent powers of the remand should not be exercised except when it is clearly necessary for the ends of justice to do so. When there is any specific provision in the Code which would make necessities of the case or when the circumstances are such that the Appellate Court can itself dispose of the case, no remand should be ordered. It is also well settled that the mere fact that the evidence on the record is not sufficient to enable the Court to come to a definite finding on the point in issue, is not sufficient to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial Court.

The Appellate Court can remand the matter back in the following cases:-

(i) When the Appellate Court directs an amendment of the plaint or addition of fresh parties.

(ii) When the Appellate Court finds that the suit is bad for misjoinder of parties and cause of action. In such a case, the Appellate Court may remand the case and direct the Lower Court to return the plaint for amendment. The Appellate Court can remand the case where, it finds that the impleadment of necessary party was necessary.

(iii) When the Lower Court has dismissed a suit on the ground that the suit has been brought in the name of the wrong person as plaintiff or defendant.

(iv) When the Lower Court has misunderstood the whole case and when the suit has been disposed of on an erroneous issue.

(v) When the Lower Court has failed to determine material issues in the case.

(vi) In the event, the Appellate Court comes to the conclusion that it cannot be decided the dispute on its own with the material available on record but not otherwise.

(vii) Where the Court had proceeded ex parte against the defendant and in absence of sufficient evidence had granted a decree, the case should be remanded back for retrial and fresh appraisal of evidence.

Now, in view of Order 41 Rule 24 of the CPC, it is clearly envisaged that the Appellate Court is empowered to decide the appeal even if there is need to re-settling the issues Now, in this case, the Appellate Court itself has observed in the matter that it C/CRA/463/2019 JUDGMENT could decide the issue from the evidence on record. Thus, it clearly appears that the exercise of the power to remand the matter back to the Trial Court is not legally sustainable and the same deserves to be set aside as there is ample evidence on record for the Appellate Court to decide the issue of limitation itself. It appears that the in the quest of earlier disposal of the appeal, the Appellate Court has remanded back the matter to the Trial Court. This exercise of the Appellate Court is not sustainable in view of the provision contained in Order 41 Rule 24 of the CPC thereof. Under these circumstances, the impugned judgment and order dated 4 th June 2019 passed in Regular Civil Appeal No.46 of 2017 (Old Regular Civil Appeal No.4 of 2013) passed by the learned Additional District Judge, Visavadar is required to be quashed and set aside and there is need to direct the Appellate Court to decide the appeal in accordance with law.

For the foregoing reasons, the present civil revision application is hereby allowed. The impugned judgment and order dated 4th June 2019 passed in Regular Civil Appeal No.46 of 2017 (Old Regular Civil Appeal No.4 of 2013) by the learned Additional District Judge, Visavadar is hereby quashed and set aside. The Appellate Court is directed to restore the appeal and decide and dispose of the same in accordance with law after providing an opportunity of hearing to both the parties.

The appeal is of the year 2013, therefore, the Appellate Court is directed to decide and dispose of the appeal as expeditiously as possible preferably within a period of three months from the date of receipt of the writ of this Court. The parties are directed to cooperate the Appellate Court to decide and dispose of the appeal in time bound manner. Rule is made absolute. No order as to costs. Direct service is permitted.