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2008(1) Supreme 756
Supreme Court of india
(From Allahabad High Court)
Smt. Bachahan Devi & Anr. — Petitioners
versus
Nagar Nigam, Gorakhpur & Anr. — Respondents
Appeal (civil) 992 of 2008
(Arising out of S.L.P (C) No. 24576 of 2004)
Decided on : 05-02-2008
(1975) 1 SCC 770 – Referred.
(b)Code of Civil Procedure, 1908 – Order XLI, rule 25 – The provision comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon merits – Where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part – Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. (Para 10)
(1975) 4 SCC 458 – Relied upon.
(c)Interpretation of Statutes – Mere use of word ‘may’ or ‘shall’ is not conclusive – The question whether a particular provision of a statute is directory or mandatory has to be decided by ascertaining the intention of the Legislature for which the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue – Several statutes confer power on authorities and officers to be exercised by them at their discretion – Such power is in permissive language, and in certain circumstances, such power is ‘coupled with duty’ and must be exercised. (Paras 12 and 13)
(1890) 44 Ch D 262; (1880) 5 AC 214:49 LJ QB 580: (1874-80) All ER Rep 43 (HL); 1968 AC 997: (1968) 1 All ER 694: (1968) 2 WLR 924 (HL); (1911) 2 QB 1131; (1889) 60 LT 963; (1978)2 SCC 573; 50 IA 227: AIR 1923 PC 138; (1952) 1 SCR 135; (1980) 4 SCC 162; 2007(10) SCR 245 – Relied upon.
(d)Interpretation of Statutes – Directory or mandatory – Consideration for determination discussed. (Paras 29 to 34)
(e)Code of Civil Procedure, 1908 – Order XLI, rule 25 – In view of the High Court remitting the matter with the observation that if the Appellate Court is of the opinion that if the evidence is insufficient to decide the issue, only then the matter may be remitted to the trial Court; there is no infirmity. (Para 37)
Facts of the case:
1.Respondent no.1 as plaintiff no.1 along with one Gabbu filed Suit No.23 of 1960 for declaration that the land in dispute belongs to it and the defendants have no concern with the property. Assertion was that the property in question had vested in it in view of the notification issued by the State Government after abolition of Zamindari.
2.The suit was decreed on 17.1.1972. The trial court granted relief of permanent injunction and also declared that plaintiff no.1 is the owner of the said plot.
3.The decree was challenged by way of appeal by the appellants. The Appellate Court was of the view since the written statement had been amended during the pendency of the appeal, the matter should be remanded to the trial court for fresh decision.
4.Challenging the order passed, an appeal was filed by respondent no.1 before the High Court.
5.The High Court set aside the order of the First Appellant Court and the matter was remanded to it for decision of the appeal on merit.
Findings of the Court:
In view of the High Court remitting the matter with the observation that if the Appellate Court is of the opinion that if the evidence is insufficient to decide the issue, only then the matter may be remitted to the trial Court; there is no infirmity in the impugned judgment.
Result : Appeal dismissed.
judgment
Dr. Arijit Pasayat, J. —
1.Leave granted.
2.Challenge in this appeal is to the order passed by learned Single Judge of the Allahabad High Court setting aside the order passed by the First Appellate Court, and directing it to take decision on merit.
3.Essential facts are as follows:
Respondent no.1 as plaintiff no.1 along with one Gabbu filed Suit No.23 of 1960 for declaration that the land in dispute belongs to it and the defendants have no concern with the property. Assertion was that the property in question had vested in it in view of the notification issued by the State Government after abolition of Zamindari. The suit was decreed on 17.1.1972. The trial court granted relief of permanent injunction in respect of suit property as described in the Schedule and also declared that plaintiff no.1 is the owner of the said plot. The decree was challenged by way of appeal by the appellants. During the pendency of the appeal, an application to amend the written statement was allowed by the Appellate Court. Thereafter certain additional issues were framed. The Appellate Court was of the view since the written statement had been amended during the pendency of the appeal, the matter should be remanded to the trial court for fresh decision. Challenging the order passed, an appeal was filed by respondent no.1 before the High Court. Stand of the plaintiff no.1 before the High Court was that the Appellate Court committed an illegality in remanding the matter for fresh consideration. It was submitted that the Appellate Court could have exercised its discretion under Order XLI Rule 25 of the Code of Civil Procedure, 1908 (in short ‘the Code’) and it could have recorded evidence itself. It was the opinion that the same was necessary for disposal of the appeal.
4.Stand of the defendants on the contrary was that two courses were available to the Appellate Court. First was to pass the remand order after setting aside the findings. The said course has been adopted. The other course was to call for findings on the issue by remitting it to the trial court. The High Court was of the view that the order of remand should be passed rarely and in the instant case that was not the case. That being so, the High Court set aside the order of the First Appellant Court and the matter was remanded to it for decision of the appeal on merit.
5.Learned counsel for the appellant submitted that the true scope and ambit of order XLI Rule 25 has been improperly pressed into service. In the background of the factual position, the order of the High Court cannot be maintained. The High Court, however, noted that if the Appellate Court is of the opinion that the evidence is insufficient, the matter may be remanded to the trial court for recording evidence in terms of Order XLI Rule 25 of the Code.
6.In response, learned counsel for the respondent submitted that it will not be in the interest of the parties to go on litigating and for that purpose the only course which was available has been adopted. Strong reliance was placed on a decision of this Court in Pasupuleti Venkateswarlu v. The Motor and General Traders,1 (1975 (1) SCC 770).
7.Order XLI Rule 25 of the Code reads as follows:
“ORDER XLI: APPEALS FROM ORIGINAL DECREES
25.Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by t
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