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1995 Supreme(Guj) 487
Gujarat High Court
Judgename :S.D.Shah
VALLABHBHAI KANJIBHAI THAKKAR - Appellant
Versus
TARABEN KANTILAL SHAH - Respondent
C.A. 171 of 1995
Decided On : 12/22/1995
Headnote:(a) Civil Procedure Code, 1908 - Order 41 Rule 23 - Remand under - Applicability of the provision - Suit must have been disposed of upon a preliminary point - In the present case judgment & decree are passed by trial court on all issue after recording evidence of both the parties hence provision can not be invoked in the case for remand.
Rule-23 of Order 41 of the Code of Civil Procedure can have no application to the present case as the judgment and decree passed by the trial court was not one, where the suit was disposed of upon a preliminary issue. The suit was tried on all issues after recording evidence of both the parties, and in one case the decree for specific performance was passed, while in another case the same was refused. It is thus clear in the present case that the provisions of Rule 23 of Order 41 can have no application.
[Para 15]
(b) Civil Procedure Code, 1908 - Order 41 Rule 23A - As introduced by Amendment Act 1976] - Provision enabling remand in case not covered under Order 41 Rule 23 of the Code - Scope of - This provision can be resorted to only in those cases where retrial is considered absolutely necessary - In the present case order of remand quashing & setting aside the judgment & decree on most unsatisfactory vague & totally unconvincing ground held, not justified.
Rule 23A which came to be introduced by Amendment Act, 1976 deals with residuary cases or other cases where the order of remand could be made by the appellate court. The circumstances under which remand could be ordered in cases other than those covered by Rule-23 of Order 41, it is provided that where retrial is considered necessary, the appellate court shall have some powers as it has under rule 23 to direct as to what issue or issues shall be tried in the case so remanded. The learned Asst. Judge has not assigned any legal, proper, justifiable or cogent reason and has nowhere recorded his satisfaction that a retrial, in his opinion, was necessary. The power to remand under Rule 23-A of Order 41 of the C.P. Code is not to be exercised rashly and without sufficient cause. Order of retrial in any case unless it is absolutely necessary, is to be avoided. It shall have to be kept in mind by the appellate Court that a remand of a case after quashing and setting aside the decree of the trial court with direction to re-frame issues and to permit the parties to lead evidence once again is bound to add to miseries of the parties as ordinarily trial of a civil suit in the courts in India consume minimum five to seven years time at the stage of trial and there are towns and cities where even suits are not tried in the trial court for a period of a decade or more. The human patience of the litigating parties, is by that time lost or exhausted and a feeling of dissatisfaction pervades the trial court all through out the country and order of remand therefore which is casually made without sufficient cause, without any justifiable reason and without stating as to why retrial is necessary, is wholly unsustainable both from the point of exercise of judicial discretion as well as from the point of non-fulfilment of statutory provision. In the opinion of this Court, Rule 23A of Order 41 is only to be invoked in rarest of rare or most exceptional cases when the appellate court is for very convincing and cogent reasons to be recorded in writing is satisfied that a retrial is necessary, failing which substantial miscarriage of justice would result. In my opinion, in the present case, in view of the most unsatisfactory vague, ambiguous and nebulous statements and totally unconvincing and unjustifiable reasons given by the learned Assistant Judge, there was no justification to quash and set aside the judgment and decree passed by the trial court after framing proper issues and after recording evidence afresh which may be led by the parties.
[Para 16]
(c) Practice & Procedure - Remand - Scope of - Facts & circumstances under which ordinarily remand could be ordered by lower appellate court after quashing & setting aside the judgment & decree passed by trial court are exceptional & rare and should not be ordered on absolutely flimsy grounds. Civil Procedure Code, 1908 - Sec. 99.
The facts and circumstances under which ordinarily the remand could be ordered by the lower appellate court after quashing and setting aside the judgment and decree passed by the trial court are exceptional and rare and that remand of the entire suit to the trial court after quashing and setting aside the judgment and decree of the trial court on ground which are absolutely flimsy, nonexistent, vague, ambiguous, nebulous, unjustifiable and unwarranted in every respect should not be countenanced by this Court.
From the provision under Sec. 99 of the Civil Procedure Code, it becomes clear that no decree passed by the trial court shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder nor nonjoinder of parties or causes of action. The learned Assistant Judge appears to be totally oblivious of this statutory provision. He has not adverted to this statutory provision at all. He has in the judgment observed that issue ought to have been raised about nonjoinder of parties or misjoinder of parties. One fails to understand as to how the trial court was in error when the defendants were not in a position to establish or to plead as to who were necessary or proper parties, who were not impleaded as party defendants. In absence of any specific pleading, when a general averment is made that the suit is bad for nonjoinder of parties, no obligation can be cast on the trial court to frame an issue as to whether the suit is bad for misjoinder or nonjoinder of parties. The learned Assistant Judge has also not noted anywhere in the judgment as to which parties were necessary parties, who were not joined as party defendants. This Court therefore fails to understand as to why and under what circumstances, the judgment and the decree passed by the trial court can be faulted and can be quashed and set aside on such totally nonexistent ground.
[Paras 10 & 12
( 1 ) ADMIT. Mrs. Sonal D. Vyas appears for Respondent Nos. 5 and 6 in Second Appeal No. 171 of 1995 and for Respondent Nos. 1 and 2 in Second appeal No. 172 of 1995 and waives service of admission on behalf of respective respondents. The presence of remaining respondents is not needed for the purpose of deciding this Appeal and hence their names are ordered to be deleted. With the consent of the learned Advocates appearing for the parties, printing is dispensed with and the appeals are heard today.
( 2 ) THESE two Second Appeals are directed against the judgment and decree passed by Assistant Judge, Valsad in Regular Civil Appeal No. 110 of 1986 dated 31st August, 1995 and Regular Civil Appeal No. 17 of 1990 dated 31st August, 1995. Since a common substantial question of law is involved in both these appeals, though on different facts and arising from different Civil suits, they were heard together and are being disposed of by this common judgment.
( 3 ) BOTH the parties have agreed that it is not necessary to refer in detail to the factual controversy in these two appeals as substantial question of law involved in these appeals can be decided without elaborate reference to facts. The substantial question of law which is involved and which is required to be formulated for the decision of this Court is as under :"whether on the facts and in the circumstances of the cases, in suits for specific performance when the trial Court has framed issues, which are most relevant and germane to the suits of such nature, is it open to the First Appellate Court exercising power under Sec. 96 of the Civil Procedure Code to reverse the judgment and decree of the trial Court on very ambiguous and nebulous statement that certain issues which ought to have been raised were not raised and certain issues which were raised and answered were not necessary to be raised and that attention was not focused by the trial Court on the relevant issues, is a permissible exercise of power to quash and set aside such otherwise legal and proper decree and to remand the entire matter to the trial Court in view of the provision of Sec. 99 of the Civil Procedure Code read with Order 41 Rules 23, 23a and 24 of the Code of Civil Procedure. "3a. In Second Appeal No. 171 of 1995, appellant is the original plaintiff. He has instituted Regular Civil Suit No. 160 of 1979 for specific performance of the agreement to sell dated 24th of September, 1978 alleged to have been executed in his favour by defendant Nos. 1 to 4 and also for further relief that the subsequent sale deed executed by defendant Nos. 1 to 4 during the pendency of the earlier banakhat as well as during the pendency of the suit in favour of defendant Nos. 5 and 6 was null and void. Such suit is dismissed by the trial Court after framing issues which it raised based on the pleadings of the parties. The trial Court at Exhibit- 32 framed following issues :1. Whether the plaintiff proves that the defendants executed an agreement to sale the properties described in Para 13 of the plaint for Rs. 5,999. 00 ? 2. Whether the plaintiff proves that Rs. 1,500. 00 was paid to the defendants on 24-9-1978 towards the price ? 3. Does the plaintiff proves the terms of Satakhat as stated in Para 3 of the plaint ? 4. Does the plaintiff proves that the defendants have committed the breach of agreement ? 5. Whether the plaintiff proves that he is entitled to the specific performance of the said agreement ? 6. Is the sale deed dated 24-1-1985 executed by defendant Nos. 1 to 4 in favour of defendant Nos. 5 and 6 is legal and valid and operative and binding to the plaintiff ? 7. Is plaintiff in alternative entitled to damages in the sum of Rs. 7,500/- with interest from 24-1-1985 from the defendants ? 8. What order and decree ?and recorded following findings :1. In affirmative 2. In affirmative 3. In affirmative 4. In negative 5. In negative 6. In affirmative 7. In negative 8. As per final order
( 4 ) BASED on the af
