Des Raj vs Madan Lal

G.C. Mital, J.—Madan Lal filed a suit against his brother Des Raj, to seek rendition of accounts in regard to the income and sale proceeds of the agricultural land mentioned in the suit, on the plea that be was owner of 1/4th share and the defendant had the remaining share. He pleaded that on 5th October, 1972, the defendant admitted the plaintiff''s claim and received Rs. 4100.87 as the price of 1/4th share in the land and agreed by a written document that henceforth the plaintiff would be entitled to 1/4th share in income and sale proceeds. The defendant is alleged to have transferred part of the land and part of it was acquired by the State Government.

The defendant denied the plaintiff''s allegations and contested the suit.

The trial Court on the basis of the evidence led in the case dismissed the suit.

On plaintiff''s appeal the learned Additional District Judge was of the view that for determination of the real controversy between the parties who were brothers, it was necessary to frame the following issues, without which there would be miscarriage of justice:-

(1A) Whether the plaintiff paid Rs. 4160.87 if so, what is effect of the same?

(1B) whether the defendant executed any written undertaking that he will pay 1/4th share to the plaintiff in case of transfer of the land? If so to what effect?

By order dated 26 November, 1986, the lower appellate Court set aside the judgment and decree of the trial Court and remanded the case to the trial Court under Order 41 Rule 25 of the CPC (for short ''the Code''), for fresh trial after allowing the parties to lead evidence on the additional issues. This is defendant''s second appeal.

After consideration of the matter, I am of the view that the lower appellate Court was right in framing the additional issues. On the peculiar facts of this case, in a dispute between brothers, all matters should have been separately put in issue so that there is no miscarriage of justice, and this is what the lower appellate Court has done. To this extent, the order of the lower appellate Court is upheld.

Under Order 41 rule 25 of the Code, the remand is limited for calling a report from the trial Court and for decision of the appeal on that basis, whereas complete remand is under Order 41 rule 23 or under rule 3-A of the Code, as amended by this Court. Either the lower appellate Court made a complete remand and wrongly mentioned rule 25 of the Code or had right by mentioned rule 25 of the Code, and wanted limited remand but by mistake made a complete remand and ordered fresh trial. By now, it is well settled rule on the basis of various decisions of this Court that complete remand should be made in rare cases end whenever additional issues are framed or amendment is allowed and that occasioned framing of new issues, normally there should be limited remand under Order 41 rule 25 of the Code. In this case, no exceptional ground for making a complete rem and is made out. Accordingly, the order of the lower appellate Court is modified to the extent that the remand to the trial Court would be under Order 41 rule 25 of the Code, for the limited purpose of recording evidence and to prepare report on the additional issues and sead it to the lower appellate Court and the lower appellate Court would decide the appeal on the basis of the evidence led keeping in view the report of the trial Court. The appeal stands disposed of in the aforesaid terms with no order as to costs.

The parties through their counsel are directed to appear before the lower appellate Court on 21.9.1987 on which date, it would direct the parties to appear before the trial Court. The trial Court would send report within six months but in any case within 8 months from today.