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Judgment
This appeal has been filed by the appellant against the judgment and decree dated 28.11.2007 passed by Addl. District Judge, Srinagar, by
which he has remanded the case to the trial court for fresh trial. The brief facts of the case are that a suit came to be filed by respondents/plaintiffs
before the trial court claiming to be the tenants of the defendant/appellant with a further decree of mandatory injunction seeking restrain on the
defendant/appellant not to dispossess them from the shop. The defendant/appellant denied status of the respondents/plaintiffs as tenants but said
that they are licencees. The matter was heard by the trial court after the parties were permitted to lead evidence. The trial court vide its order
dated: 19,12.2006 framed the following issues which are reproduced hereunder:
Whether the plaintiff have jural relationship with the defendant and is entitled to the decree as prayed for. OPP
Whether the plaintiffs are the tenants of the defendant? OPP
Whether the plaintiffs have paid any rent for use and occupation of the suit shops? OPP
Whether the plaintiffs have any cause of action against the defendant? OPD
Whether the property is in dilapidated condition and requires immediate repairs? OPD
6......
Whether the plaintiffs have any legal status to prohibit the defendant from raising construction or repairing of the property? OPD
Relief.
The plaintiffs did not get their statements recorded by the trial court. The trial court after recording the evidence of the parties found on facts that
plaintiffs failed to prove their status as tenants in the said suit. It is important to mention that a specific issue was raised by the trial court stating as
to whether plaintiffs are tenants of the defendant. The trial court after hearing the parties dismissed the suit of the plaintiffs/respondents by holding
that they were not tenants of the premises owned by the appellant and consequently they would not be entitled to any protection under J&K
Houses and Shops Rent Control Act.
Against this an appeal was preferred before the learned Addl. District Judge, Srinagar. The Addl. District Judge after hearing the parties has
remanded the case for fresh trial to the trial court. That the following facts have influenced the appellate court to pass the order:
i. The issues have not been properly framed and as such, directed to recast/redraft issues 1 and 2 as framed by the trial court.
ii. That no finding has been recorded by the trial court with regard to the status of the plaintiff/respondent herein.
I have heard learned counsel for the parties and perused the record. The dispute in the present litigation relates to the status of the
plaintiffs/respondents. The plaintiffs in their suit filed before the trial court sought to establish their status as tenants. They were aware of the fact
that they have to establish their right over the property as tenants. This title of the respondents was denied by the appellant/defendant. The trial
court had specifically struck an issue as to whether the plaintiffs are the tenants of the appellant/defendant. All other issues were peripheral and
dependant upon the out come of the main issue. It is also not in dispute that the defendants had admitted the status of the plaintiffs as licencees.
Order 41 Rules, 23, 23A, 24, and 225 of the CPC provides a scheme for remand of the cases. Rule 23 provides that in case the suit has been
decided on preliminary issue, the appellate court has the power to remand the case for afresh trial. Rule 23 presupposes the trial of the suit afresh.
Rule 23A contemplates the power of remand where the case has been decided otherwise than on a preliminary issue and if in the opinion of the
court it considers fit, it can remand the case for retrial but this power is also subject to the conditions as are enumerated in Rule 24. The scheme in
itself is comprehensive. So in essence the remand under Rule 23A has to be only on contingencies other than what is provided by Rule 25. Rule 24
contemplates that where the evidence on record is sufficient to enable the appellate court to pronounce the judgment, the appellate court may after
resettling the issue if necessary finally determine the said suit. It clearly contemplates that where the evidence is sufficient but proper issues have not
been framed, it can on the basis of evidence so produced may resettle the issues. Rule 25 contemplates that where the trial court has failed to
frame or try issues or determine any question of fact which is essential to the right decision of the suit upon the merits, it can frame issue and refer
the same for trial to the court from whose decree the appeal is preferred. In this case the trial court can be directed to take additional issues framed
by the trial court and shall return a finding recorded by it to the appellate court. The reading of rules 24 and 25 would indicate the power of the
appellate court in respect of remand.
The appellant court has remanded the case on the question that the trial court has not properly drafted the issues whish has mislead the parties
as a result of which there is no proper determination of the suit. The only question that was required to be determined by the trial court which
would go to the core of the issue was whether the plaintiffs were tenants of the defendant. In my opinion the parties were aware of their case and
lead evidence on the facts which were germane to the determination of the main controversy. It is also not in dispute that the plaintiffs/respondents
herein have not complained before the trial court regarding framing of the issues and that they were prejudiced during the trial for want of such an
issue or specific issue being framed. It is a case built up by the respondents before the appellate court. I am of the considered view that the parties
were aware of their case and have understood the controversy involved. They led the evidence to prove their contention before the trial court. The
parties had led evidence on all the issues raised before the trial court. They were not misled that an issue was not properly framed. The appellate
court could have invoked Rule 24 of Order 41 of CPC as there was sufficient material available on the basis of which he could have resettled the
issues and pronounced the judgment. The plain tiffs/respondents herein have produced the evidence in support of their contention. The trial court
has recorded a finding that they are not the tenants.
It is submitted only in exceptional cases the court may exercise of the power of remand dehors the Rules 23 and 23A. The appellate court
should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted
order of remand should, therefore, be avoided. The power can be exercised by the trial court only if the judgment is not in consonance with the
Or. 41 Rule 23 or Rule 31 of the CPC. In the present case the appellant court has proceeded on the assumption that issues have not been
properly framed and no finding has been recorded on the issues stated by the appellate court in its order. The appellate court was seized of the
record of the trial court and it could have proceeded under Or. 41 Rule 24 and decided the case on its own as there was sufficient material
available with the trial court to decide this appeal without remanding it to the trial court.
8.1, therefore, allow this appeal, setaside the order of the appellate court and direct the parties to appear before the appellate court on
14.10.2008 who shall decide the appeal afresh in accordance with law after hearing the parties.
Let file be send to the appellate court along with a copy of this judgment.