AI Structured Summary
Not yet generated for this judgment
Judgment
This miscellaneous appeal filed under order 43 Rule 1(u) of Code of Civil Procedure, 1908 is directed against the order dated 03.05.2008 passed in Civil Appeal No.11-A/2007 by the First Additional District Judge, Damoh arising out of the judgment and decree dated 05.11.2007 passed in Civil Suit No.45-A/2007 decided by Vth Civil Judge, Class II, Damoh.
Brief facts, necessary for adjudication of this appeal, are that the respondent No.1/plaintiff filed a civil suit for declaration and possession. The defendant No.1 filed his written statement and denied the averments of the plaint.
The trial Court framed the issues, recorded the evidence and heard the rival contention of the parties. By judgment and decree dated 05.11.2007, the trial Court recorded a finding that plaintiff could not establish that he was the owner of the suit land. However, another finding was recorded by the trial Court that the Will in favour of defendant No.1 could not be proved by him.
Since the plaintiff's title was not proved, the suit was ultimately dismissed.
Aggrieved, the plaintiff filed the Civil Appeal No.11- A/2007. The lower appellate Court set aside the findings of the trial Court on issue No.1. The Court upheld the finding of the trial Court on issue No.2. The lower appellate Court set aside the judgment and remitted the matter back to the trial Court in purported exercise of power under Order 41 Rules 23 & 25 of CPC.
Shri Pranay Verma, learned counsel for the appellant contended that the lower appellate Court has erred in holding that since present appellant did not file any counter/objection at appellate level, no interference can be made on the issue which was decided against the present appellant. The attention of this Court is drawn on the issue No.2 which is related to legality and genuineness of the Will dated 05.01.1998. Since the present appellant is claiming right/title on the basis of this Will, Shri Pranay Verma submits that the outcome of this issue was very crucial for the present appellant. Since the civil suit was dismissed, there was no occasion for the present appellant to file any appeal/objection against the judgment and decree decided against the plaintiff.
Shri Pranay Verma further submits that the remand order is not covered by any of the rules made under Order 41 of CPC. He relied on a judgment of Supreme Court in this regard. Shri Verma further contended that lower appellate Court in first portion of its judgment gave a finding regarding title and possession in favour of the plaintiff whereas in the operative portion of the judgment, remitted the matter back for recording evidence and taking a fresh decision in relation to issue No.1. He urged that the said findings are mutually inconsistent and cannot be permitted to stand.
Shri Atulanand Awasthi, learned counsel for the respondent No.1/plaintiff supported the impugned judgment dated 03.05.2008 and contended that in absence of preferring appeal or objection, against the judgment and decree of the trial Court, it was not open to the present appellant to raise oral objection regarding issue No.2 framed by the trial Court.
In my view, this point is is no more res integra. In 2003 (9) SCC 606 (Banarasi and others Vs. Ram Phal), the Apex Court held as under:
'' 10. The CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:- (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent; (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.''
[Emphasis supplied]
A simple reading of this judgment shows that the present case is covered by situation (ii) mentioned in Para 10 of the judgment of Supreme Court. In Para 11, the Apex Court, in no uncertain terms, made it clear that after amendment in CPC, it is not necessary to take any cross objection to assail any finding adverse to him because decree is completely in his favour and he may support the decree without cross objection. As per the explanation inserted by way of amendment, he may raise objection while answering an issue or while dealing with an issue. In the light of this judgment, I find substance in the argument of Shri Pranay Verma that Court below has erred in not entertaining the oral arguments of the appellant in relation to issue No.2. For this reason, the order impugned is liable to be interfered with.
The judgment of lower appellate Court shows that in Para 16, a clear findings is given that the land in question is an ancestral land and plaintiff's title is established. The issue framed by the trial Court on 19.01.2007 is in relation to title and possession both. In Para 37 of the impugned judgment, the appellate Court opined that the findings given by the trial Court in relation to issue No.1 is incorrect. Hence, the matter was remitted back to the trial Court to decide the Issue no.1 on the basis of evidence.
Shri Atulanand Awasthi supported the impugned judgment and contended that if fresh evidence is recorded by the trial Court, it will not cause any prejudice to the appellant.
In my view, the ancillary question is : whether the Court below was justified in remitting the matter back in exercise of power under Order 41 Rule 23 or 25 of CPC ?
I have carefully gone through various sub-rules of Order 41 of CPC. In my considered opinion, in the facts and circumstances of the case, neither Rule 23 nor Rule 25 of Order 41 of CPC is attracted/applicable. In absence thereto, the remand order cannot be countenanced.
This Court recently in M.A. No.2644/2004 (Suresh Prasad Vs. M.P. Housing Board & others) dealt with the scope of Order 41 Rules 23 and 25 of CPC. This Court opined as under:
'' 12. In the present case, since the decree was not passed by the trial court on preliminary point/ issue, Rule 23 is clearly inapplicable. Rule 25 aforesaid, in no uncertain terms provides that in order to determine any question of fact which appears to the appellate court essential for right decision of the suit upon the merits, the appellate court may frame necessary issues and refer the same for trial to the trial court. The additional evidence may be required to be examined. The trial court, in turn, shall return the evidence to the appellate court together with its findings and reasons. Thereupon, the appellate court can pass its judgment.
In the light of aforesaid, it is clear like noon-day that in the present case when lower appellate court found that it is necessary to determine a question of fact, namely, exact location of land, it should have exercised the powers envisaged in Rule 25 of Order 41. It has clearly erred in remitting the matter on wholesale basis. Thus, I find substance in the point raised by the appellant.
As analyzed above, the lower appellate court has erred in remanding the matter. Accordingly, the impugned judgment dated 09.07.2004 is quashed and set aside. The matter is remitted back to the lower appellate court to pass necessary order under Rule 25 of Order 41 CPC. The lower appellate court shall fix time limit within which the trial court shall take necessary steps, record evidence etc. and submit its findings before the lower appellate court. The parties shall appear before the lower appellate court on 20.09.2017. The Registry of this court shall send the original record to the lower appellate court along with copy of this order.''
In view of specific language of Order 41 Rule 25 of CPC, the appellate Court could have framed the necessary issue/question, if such issue was not framed by the trial Court. If issue was framed but proper evidence is not recorded and it is felt necessary by the appellate Court to record evidence, the appellate Court should have kept the appeal pending and remitted the matter back to the trial Court to frame issue/record evidence as the case may be. The wholesale remand to the trial Court is not justifiable in the teeth of Rule 25 of Order 41.
As analyzed above, the appellate Court has erred in remanding the matter. Accordingly, the impugned order dated 03.05.2008 is set aside. The matter is remitted back to the lower appellate Court to pass necessary orders keeping in mind the aforesaid observations of mandate of Rule 25 of Order 41 of CPC.
The appeal is allowed to the extent indicated above.