Sadhuram and Others vs Intjamia Committed Tahpuj and Others

Hon''ble Shri Justice Sujoy Paul

The petitioners have tested the order dated 23.8.2011 in this petition filed under Article 227 of the Constitution. The brief facts necessary for adjudication of this matter are as under :-

The plaintiffs filed a suit for declaration that defendants have no easementary right on their land. The matter was ultimately travelled to this Court in S.A. No. 94/2000. An additional substantial question of law was framed by this Court which was regarding jurisdiction of the Civil Court after commencement of the Wakf Act, 1995. This Court directed that the said question will remain open and it will be decided by the first appellate Court. Ultimately, the matter was remanded back and to the first appellate Court, the defendants/respondents No. 1 and 2 herein preferred an application under Order 6 Rule 17 CPC (Annexure P/5). The said application was opposed by the other side/plaintiffs. The Court below by impugned order dated 23.8.2011, allowed the said application and directed the trial Court to frame an additional issue. The said issue was also formed and directed to be dealt with by the trial Court and in turn the trial Court was directed to record the evidence of the parties and after forming an opinion on the said issue, send the matter to the appellate Court for appropriate decision.

Shri K.S. Tomar, learned senior counsel for the petitioners, assailed this order of the Court below on two counts; (i) As per settled legal position, the application for amendment can be considered only after merits of the matter are considered by the appellate Court. The first appellate Court has erred in allowing the amendment application before dealing with the merits of the matter. (ii) The Court below has committed an error in framing the issue and remanding the matter back to the trial Court to record evidence on that issue without hearing the appeal on merits. In support of his contention, he relied on the following judgments:-

(i) Khemchand Vs. Government of M.P. and others,

(ii) 1997 (II) MPWN SN 147 (Sampurna Singh v. Harisingh)

(iii) Krishnarao Kavdikar (dead) through his L.Rs. Ullas Kavidkar Vs. Smt. Sadhna Khanvalkar and Another,

(iv) Gogula Gurumurthy and Others Vs. Kurimeti Ayyappa,

(v) Jegannathan Vs. Raju Sigamani and Another,

Shri N.K. Jain, learned senior counsel for respondents No. 1 and 2, supported the order and by placing reliance on certain paragraphs of the judgment passed by this Court in S.A. No. 94/2000, submits that the order is in accordance with law and the first appellate Court has not committed any error of law in allowing the said application. He submits that u/s 107 CPC the first appellate Court is equipped with the same powers which are vested with the trial Court and this means that the first appellate Court can consider and decide amendment application in the same manner in which it can be decided by a trial Court. By placing reliance on Order 41 Rule 25 CPC, Shri Jain submits that first appellate Court has not committed any error of law in framing an issue and directing the trial Court to record evidence on the said issue and form an opinion and then send the matter for further adjudication before the appellate Court. Learned senior counsel in addition, submits that before this Court in second appeal, a substantial question of law was framed which goes to the root of the matter. The question was regarding maintainability of the civil suit after commencement of the Wakf Act. However, when matter was remanded back before the first appellate Court, despite the knowledge that a substantial question was framed by the High Court and matter is remanded back to decide this issue as well, a frivolous objection was raised by the plaintiffs that there is no objection/averment in this regard in the written statement. Learned counsel submits that the Wakf Act came into being in the year 1995 and before that defendants had already filed the written statement, and therefore, there was no occasion for the defendants to plead in this regard when original written statement was filed. However, in the fitness of things and in the light of the order passed in S.A. No. 94/2000, it was thought proper to amend the written statement as an abundant caution to take necessary pleadings with regard to maintainability of the civil suit after commencement of the Wakf Act. Learned counsel submits that in view of the substantial question of law already framed by this Court, the defendants have only added those objections in the written statement by way of amendment and it will not cause any prejudice to the plaintiffs. He relied on Smt. Jaspreet Kaur and Another Vs. Ramkrishna and Others, in this regard. By placing reliance on the judgment of the Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, it is further submitted that there is no ingredient on which interference can be made by this Court under Article 227 of the Constitution.

I have heard learned counsel for the parties and perused the record.

Before dealing with the twin contentions raised by the petitioners, I deem it appropriate to quote the relevant portion of the order passed by this Court in the said second appeal whereby the matter was remitted back to the appellate Court, which reads as under:-

Regarding Additional Substantial Question of Law:-

The suit was filed on 07/02/1973. During the pendency of the civil suit, the Wakf Act namely the Wakf Act, 1995 came into force. What would be the impact of this Act, the learned First Appellate Court shall also decide this issue afresh and if it is found that civil court has no jurisdiction, necessary orders shall be passed in that regard. However, this Court has not at all expressed any view whether on coming into force of the Wakf Act, 1995, the Civil Court has no jurisdiction. The learned First Appellate Court shall be totally free to decide this point.

Since by answering the substantial question of law ''b'' in favour of the appellants the case is being remanded to learned First Appellate Court, therefore, other substantial questions of law are not being decided. The point involved in those questions may be decided by learned First Appellate Court.

Ex-consequent, this appeal succeeds and is hereby allowed in part. The impugned judgment and decree passed by learned First Appellate Court is hereby set-aside and further both the applications dated 27/10/1998 and 23/12/1998 filed by the appellants are hereby allowed and the documents filed alongwith the applications are taken on record. The defendants/respondents shall be free to file additional evidence in rebuttal if they so desire. If the learned First Appellate Court thinks it proper that oral evidence is necessary, he may send back the case to the learned Trial Court for a limited purpose of recording the evidence of the parties to prove those documents and finding thereof may be called and thereafter may re-decide the appeal in accordance with law. The learned First Appellate Court shall also decide whether the civil suit is maintainable or not.

This judgment delivered in S.A. No. 94/2000 has attained finality. Thus, a substantial question of law needs to be decided by the first appellate Court regarding maintainability of the suit after commencement of the Wakf Act, 1995. Para 16 aforesaid makes it crystal clear that during the pendency of the civil suit, the Wakf Act aforesaid came into being. Thus, there was no occasion for the defendants to take an objection in this regard in the original written statement. In Khemchand (supra) this Court has opined that amendment application at appellate stage can be dealt with after appeal is first heard on merits. In Sampurna Singh (supra) the aforesaid judgment of 1972 was followed. In the considered opinion of this Court, the principle of law laid down in the said judgments cannot be doubted, however, this is settled in law that ratio decidendi of a matter is to be seen in the facts and circumstances in which judgment is delivered. No straight-jacket formula can be applied for considering the ratio. In Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the Apex Court held that the precedential value of a judgment depends on the facts and circumstances of a particular case and even an additional fact may change the precedential value of a judgment. The relevant portion of the judgment reads as under:-

A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

In the considered opinion of this Court, in the peculiar facts and circumstances of this case, the second appellate Court has already framed an issue regarding maintainability of the suit and remitted the matter to the first appellate Court to decide it. For deciding this issue in a proper manner, first appellate Court allowed the application for amendment preferred by the defendants whereby they took an objection regarding tenability of the suit after commencement of the Wakf Act. In my opinion, the said judgments Khemchand and Sampurna Singh (supra) cannot be mechanically applied in the peculiar facts and circumstances of this case. The additional and important fact in this matter changes the scenario i.e. formation of an additional substantial question of law by the High Court and remanding the matter for its determination and adjudication by the first appellate Court. In the light of the aforesaid order of this Court, no fault can be found in the attempt of defendants to amend their written statement with a view to take a specific plea regarding tenability of the suit after commencement of the Wakf Act. Therefore, the said judgments are of no assistance in the present case. The other judgments Krishnarao Kavdikar (dead) through his L.Rs. Ullas Kavdikar, Gogula Gurumurthy and Jegannathan (supra) have no applicability in the facts and circumstances of the present case. Considering the aforesaid, the first point raised by the learned senior counsel for the petitioners regarding impermissibility in dealing with amendment application without dealing with the merits of the case, cannot be accepted and is hereby rejected.

Coming to the second contention regarding remanding of the matter to the trial Court, in the considered opinion of this Court, under Order 41 Rule 25 CPC the first appellate Court is equipped with this power. A bare perusal of the said provision, shows that first appellate Court has not committed any error of law or jurisdictional error. In view of the aforesaid analysis, in my considered opinion, the amendment was necessary for deciding the real issue involved and it will not cause any prejudice to the other side. Once the question is already framed by this Court, no fault can be found in the application of the defendants under Order 6 Rule 17 CPC. The Court below has rightly allowed the said application. The scope of interference under Article 227 of the Constitution is limited. In absence of any jurisdictional error, palpable procedural irregularity or perversity, no interference is warranted. This Court is not required to sit as an appellate Court to interfere in a routine manner or on a drop of hat. Another view is possible, is not a ground for interference as per the litmus test laid down by the Supreme Court in Shalini Shyam Shetty (supra). I find no ingredient in this petition on which interference can be made. On the basis of aforesaid analysis, petition is bereft of merits and substance. It is accordingly dismissed. No costs.