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Judgment
Prakash Krishna, J.—Challenging the remand order dated 11.6.2003 passed by the Deputy Director of Consolidation, Kanpur, Camp Hamirpur in revision No. 40/1575, the present writ petition has been filed.
After passing of the impugned order, the father of the petitioners Mangal who was contesting the proceedings expired and the present writ petition has been filed by Sheikh Natthi, and Sheikh Zahoor, sons of Mangal (deceased).
The father of the petitioners claimed Bhumidari rights over Plot No. 159/1 area 1.84 Acres, 159/4 area 0.19 Acres and 585/2 area 0.26 Acres situate at Village Bhamaura Tehsil Maudaha District Hamirpur. During the consolidation operation, an objection was filed by the contesting respondent No.2 in respect of the aforesaid plots.
The case of the contesting respondent No. 2 was that he is a disabled person since birth and therefore, has become sirdar and after the abolition of Zamindari he has become Bhumidar of the land in question. The parties led evidence in support of their respective cases. The Consolidation Officer by the order dated 21.12.1988 rejected the objection filed by the contesting respondent No. 2. The said order was challenged unsuccessfully in Appeal No. 205/292 before the Settlement Officer of Consolidation, Hamirpur. Being dissatisfied with the orders of the Consolidation Officer and of the Settlement Officer of Consolidation as well, a Revision No. 40/1575 was filed before the Deputy Director of Consolidation who has passed the impugned order allowing the revision and restored back the matter to the Settlement Officer of Consolidation. The said order is under challenge.
The learned Counsel for the petitioner submits that on the facts of the present case, impugned order of remand is not justified.
The evidence was led by the respective parties in support of their respective cases and the Deputy Director of Consolidation ought to have decided the revision on merits instead of remand the matter for fresh consideration. He further submits that without discussing any evidence, the Deputy Director has recorded somewhat contradictory findings.
In contra, Shri M.A. Quadeer, the learned Senior Counsel supports the impugned order and submits that there is voluminous evidence on record to show that the respondent No. 2 is a disabled person since birth and as such no interference is called for in the present writ petition.
Considered the respective submissions of the Counsel for the parties.
As noticed above, the two authorities i.e the Consolidation Officer and Settlement Officer of Consolidation on the basis of the material available on the record, found that the objection filed by the respondent No. 2 is meritless. Without setting aside the findings recorded by the two authorities below, the Deputy Director of Consolidation has passed the impugned order. By passing the impugned order, the Deputy Director of Consolidation has given a new life to the litigation. It has been held by catena of decisions that remand order should not be passed in a routine manner. Time and money spent go waste by passing the remand order.
In P. Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409 the Apex Court has held that if a finding is required on a particular issue then the entire order of the Trial Court should not be set aside. A finding on the said issue may be called for from the Trial Court.
The Apex Court in Ashwin Kumar K. Patel v. Upendra J. Patel and others, AIR 1999 SC 1125 has held that the High Court should not ordinarily remand a case under Order XLI Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the Trial Court and considered whether the order of the Trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in that case, such remand orders would lead to further delay and uncertainty. Thus the remand by the High Court was not necessary.
Apex Court in P. Purushottam Reddy and another v. Pratap Steels Ltd., 2002 (48) ALR 319 (SC) considered the powers of the Appellate Court as conferred on it under Order XLI Rules 23, 23A and 25 of the Civil Procedure Code. While setting aside the order of remand passed by the High Court, it has been laid down that the High Court was to examine whether such finding of the Trial Court was sustainable or not in eyes of law and on facts. Even otherwise also the question could have been gone into by the High Court and a finding could have been recorded on the basis of available material inasmush as the High Court being the Court of first appeal, all the question of fact and law arising in the case were open before it for consideration and decision.
In view of above discussion, I find sufficient merit in the submissions of the Counsel for the petitioners. The impugned order remanding the matter to the Settlement Officer of Consolidation therefore cannot be sustained. The writ petition succeeds and is therefore allowed. By way of clarification, it is added that any observation made in the body of the judgement will hot effect the merits of the case of the respective parties. The Deputy Director of Consolidation shall do good by deciding the revision on merits preferably within a period of three months from the date of production of a certified copy of this order.