Moti Ram vs Pandu Ram

H.R. Sodhi, J.—This is an appeal against an order of remand made by the Additional District Judge, Gurgaon, on 24th January, 1968, where-by he framed an additional issue and directed the trial Court to decide the whole case afresh in the light of the issue framed by him.

Moti Ram Plaintiff Appellant filed a suit that he was in occu-ption of the site in dispute as a tenant under the vendors Shugan Chand and others since the year 1958 and, therefore, entitled to preempt the sale. He pleaded that the site, the sale, whereof was sought to be pre-empted, was situate in the old town of Palwal where the custom of pre-emption prevailed. Pandu Ram etc. vendees resisted the suit on various grounds pleading inter alia that para 2 of the plaint was vague inasmuch as it did not specify in which sub-division of the town the disputed plot of land was situated and whether there was a custom of pre-emption in that sub-division. The parties went to trial on that sub-division. The parties went to trial on the following issues of which issue No. 2 is the relevant one the purposes of the present appeal:

Whether the Plaintiff has got a preferential right of peremption ?

Whether there exists a custom of pre-emption in the locali-y where the suit property is situated ?

Whether the suit is bad for partial pre-emption.

If issue No 1 is proved on what payment the Plaintiff is entitled to pre-empt ?

Whether the Defendant vendees incurred expenses-of sale deed, if so, to what amount and what effect ?

Whether the suit has not been properly valued for purpose of court-fee and jurisdiction ?

Relief.

The trial Court after recording the entire evidence came to the cone usion that the Plaintiff Appellant had a preferential right and under issue No. 2 it was held that the custom of pre-emption was proved to exist in Palwal town where the suit property was situated. It was of the opinion that no doubt the Plaintiff did not make any specific allegation that the town of Palwal was divided into sub-divisions, but the vendees also had not made any such assertion. The suit of plain-tiff was ultimately decreed.

On appeal by the vendees, an argument was raised that they had pointed out in the written statement that the Plaintiff did not specify in which sub-division the disputed property was situated and whether there was a custom of pre-emption prevailing in that sub-division. It was urged that the trial Court should have framed a separate issue to find out if the town was divided into sub-divisions and whether the custom of pre-emption existed in that sub-division where the property was situated. The case of the Plaintiff, according to the evidence produced by him, was that the disputed site was situate in Mohalla Khail Kalan and evidence was led to the effect that custom of pre-emption existed in that Mohalla. The contention of the vendees prevailed with the Additional District Judge who framed an additional issue in the following terms:

Whether the town of Palwal is divided into sub-Divsions and if not, to what effect ?

2(a) If issue No 2 is proved in the affirmative, in what subdivision the disputed site is situated ?

2(b) If issue No. 2(a) is decided in affirmative, whether the custom of pre-emption exists in that sub-division ?

In my opinion, the issue as framed by the Court of first appeal was wholly unnecessary and redundant, calculated only to prolong the proceedings which is not the object of making a remand, it cannot be said that it was not present to the minds of the parties where the property was situate and whether custom of pre-emption existed in that locality. Issue No. 2 was quite comprehensive and it was open to the Defendants vendees to lead evidence under that issue if they wanted to rebut the evidence of the Plaintiff that the property was situate in a particular sub division where there was no custom of pre emption. It is not a case of proving any negative but it would have been just rebutting the evidence produced by the Plaintiff. The Plaintiff discharged the onus on him by proving that the suit property was situate in a particular Mohalla and the custom of pre-emption existed in that Mohalla. There is nothing sacrosanct about the use of the phraseology of sub-divisions and all that is intended by law is that when a town is divided into separate subdivisions, a custom must be shown to exist in that separate portion of the town which by itself constitutes an independent area. The written statement of the vendees was also evasive and it was open to them to claim an issue if they found that issue No. 2 was not sufficient and required to be further amplified. No such step was taken on their part and instead for the first time the lower appellate Court accepted their argument and just spurned the case back to the trial Court without applying its mind as to whether remand was necessary The trial of a case generally extends over a long period of time and entails huge expenditure for the parties to the litigation. It is a great harassment for them if Courts of appeal do not do their duty properly and without applying their mind remand cases when no such remand is called for. Howsoever wide may be the power of remand, it is not intended to be exercised to give an opportunity to the parties to make up lacuna in their respective cases. It has time and again been emphasised by this Court on the subordinate Courts that they should not act rashly and without sufficient cause in sending back cases for retrial.

Mr. H.L. Sarin, learned Counsel for the vendees Respondents, could not, as a matter of fact, seriously support the order of remand in the circumstances of the present case.

For the foregoing reasons, I allow the appeal, set aside the order of the Additional District Judge, Gurgaon, and direct that he should dispose of the appeal on merits without any further loss of time. The case has already been much delayed, firstly because of the remand and secondly, the matter having remained pending in this Court for more than a year. The Respondent- will bear costs of Appellant in this appeal. The parties are directed to appear before the Distric Judge, Gurgaon on 3rd November, 1969.