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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Shri Parag Babasaheb Bamne – Appellant
Versus
Shri Pandurang Anandrao Rayte – Respondent
Appeal From Order No.1 of 2023 With Civil Application No. 1 of 2023
Decided on : 12-01-2024
Remand - Civil Appeal - Code of Civil Procedure, 1908 - Order 41 Rule 25 - The court partly allowed the appeal, set aside the judgment and decree, and remanded the suit for fresh decision on the issues framed by the learned District Judge. The court discussed the powers of the Appellate Court to remand a case and the relevant provisions of Order 41 regulating the procedure of Appeals from original decrees. The court found that the remand for trial on the issues was not justifiable and was in excess of the jurisdiction conferred on the Appellate Court under the provisions of the Code.
Fact of the Case:
The plaintiff filed a suit for cancellation of agreement for sale, possession, declaration, and perpetual injunction, alleging that the defendant illegally obtained possession of the property and threatened the plaintiff. The defendant resisted the claim and filed a counterclaim seeking specific performance of the agreement for sale and other reliefs.
Finding of the Court:
The trial Court found that the plaintiff failed to establish that the defendant had illegally obtained possession of the suit property. The defendant was held to be entitled to specific performance of the agreement for sale. The Appellate Court remanded the suit for fresh determination, but the High Court found the remand to be unjustified and set aside the impugned judgment and order, restoring the appeal to the file of the learned District Judge for fresh determination.
Issues: The issues revolved around the nature and true import of the transaction evidenced by the agreement for Sale dated 12 September 2008, and the entitlement of the defendant to the reliefs claimed in the Counter Claim.
Ratio Decidendi: The court emphasized the importance of framing proper issues to facilitate a correct decision of the suit and found that the remand for trial on the issues was not justifiable. It held that an unbridled remand without recording a finding that the Appellate Court was not equipped to finally decide the appeal on the basis of the evidence and material available on record was clearly in excess of the jurisdiction conferred on the Appellate Court under the provisions of the Code.
Final Decision: The Appeal was allowed, the impugned judgment and order were quashed and set aside, and the First Appeal was restored to the file of the learned District Judge for fresh determination in accordance with law.
ORDER :
1) This Appeal is directed against a judgment and order dated 18th June, 2019, passed by the learned District Judge whereby the learned District Judge was persuaded to partly allow the Appeal, set aside the judgment and decree dated 25th April, 2017, passed by the learned Civil Judge, Senior Division, Pune in Special Civil Suit No. 1044 of 2010 and remand the suit for fresh decision on the issue framed by the learned District Judge in paragraph Nos. 60 and 75 of the impugned judgment and order, purportedly under Order 41, Rule 25 of the Code of Civil Procedure, 1908 (“the Code, 1908”).
2) Shorn of unnecessary details, background facts necessary for the determination of this Appeal can be summarised as under:-
(a) For the sake of the convenience and clarity, the parties are hereinafter referred to in the capacity in which they were arrayed before the Civil Court.
(b) A suit for cancellation of agreement for sale, possession, declaration and perpetual injunction was instituted with the assertions that the plaintiff is the owner of the property, situated at Survey No.27, Hissa No. 5, admeasuring 0.1 – R with a ground floor structure admeasuring 67.41 sq. meters and 630 sq. ft. on the 1st floor, at village Ambegaon Budruk, Taluka Haveli, District – Pune (“the suit property”). The plaintiff had availed loans from Canara Bank, Kothrud, Pune and Bharati Co-operative Bank, Pune to construct the building. The loan was outstanding.
(c) In the month of August, 2008, the plaintiff met with an accident and, thus, could not pay the installments of the loan. The plaintiff, thus, decided to raise funds to repay the loan by mortgaging the ground floor of the suit property. Post negotiations, the defendant agreed to advance a sum of Rs.9,00,000/- against the mortgage of the ground floor. The parties agreed that the then value of the suit property was Rs.23,00,000/-. It was agreed that in the event the mortgage money was not repaid within three years, the plaintiff would execute the Sale-deed of the suit property in favour of the defendant upon payment of the balance consideration.
(d) The plaintiff asserted, taking undue advantage of the ill-health of the plaintiff, the defendant got executed a registered agreement for sale on 12th September, 2008. Possession of the ground floor premises was obtained illegally. The defendant also threatened the plaintiff with dire consequences. The plaintiff was constrained to issue a notice to the defendant and also lodge a complaint with the police. The plaintiff apprehended that the defendant would dispossess him of the 1st floor of the suit property as well. The plaintiff was, thus, constrained to institute the suit seeking reliefs of declaration, possession and perpetual injunction.
(e) The defendant resisted the claim by filing a written statement and counterclaim. The defendant claimed that the plaintiff had executed the agreement for sale dated 28th August, 2008 after fully understanding the import of the said document. In accordance with the terms of the said agreement for sale, the defendant had parted with entire consideration of Rs.9,00,000/-. In fact, the defendant was made to pay a sum of Rs.1,25,000/- over and above the agreed consideration on the pretext that the plaintiff required the said amount upfront to repay the loan raised from the bank. It was categorically denied that the agreement for sale was get executed by practicing fraud or misrepresentation.
(f) In pursuance of the said agreement for sale, the defendant was put in possession of the ground floor premises on 31st December, 2008. As the plaintiff avoided to execute the Sale-deed, the defendant had issued a notice on 6th January, 2010. In reply thereto dated 15th January, 2010, the plaintiff had acknowledged the receipt of consideration as well as delivery of possession of the premises on the ground floor. The plaintiff, thus, di
AI
The appellate court's power to remand a case for retrial is not uncanalized or unbridled, and an unjustified remand without recording a finding that the appellate court was not equipped to finally de....
The trial court's clubbing of issues and rendering common findings was not in violation of the legal provisions. The appellate court's remand order was found to be inappropriate.
The appellate court must discuss the merits of a case before remanding it to the trial court, as per CPC provisions.
The central legal point established in the judgment is the scope of power of remand by the Appellate Court under Order 41 Rule 23-A of the Code of Civil Procedure, 1908, and the conditions for re-tri....
The appellate court must provide cogent reasons for remanding a case, and it should decide based on existing evidence if sufficient, rather than remanding without due justification.
The remand order can only be made if the trial court skips finding on certain issues or decides the suit only on a preliminary issue. The court found that the trial courts had decided the suits on me....
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