IMPORTANT POINT
Remand of cases must strictly follow the provisions of the CPC, and inherent powers cannot be invoked when specific rules govern the remand process.

JUDGMENT :

Anil Kshetarpal, J.

CM-14840-CII-2022

This application has been filed under Order 22 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC 1908’)for bringing on record legal representative of respondent No.3-Jasbir Singh.

For the reasons mentioned in the application, which is supported by an affidavit of Mrs. Veerjit Kaur, W/o Late Jasbir Singh, the same is allowed subject to all just exceptions and the legal representative of respondent No. 3 are ordered to be taken on record.

Amended memo of parties is taken on record.

The application stands allowed.

Main case

1. In this second appeal, the plaintiff assails the correctness of First Appellate Court’s order remanding the case back to the trial Court for fresh decision.

2. Heard the learned counsel representing the parties at length and with their able assistance perused the paper-book.

3. In order to comprehend the issues involved in the present case, some relevant facts, in brief, are required to be noticed.

4. The plaintiff (appellant) filed a suit for the grant of decree of declaration that he is the owner of the property and the defendants have no right to dispossess him, pursuant to the order dated 04.02.1986, passed by the Commissioner, which is illegal, null and void and without jurisdiction. He also prayed for decree of permanent injunction restraining the defendants from interfering in his possession. In substance, the plaintiff claims that his Highness Maharaja Nabha gifted the property vide registered gift deed dated 29.03.1938 in favour of Sh. Sajjan Singh, father of plaintiff No.3. It is also claimed that the suit property was personal property of Maharaja Nabha, hence, he was competent to gift the same. The defendants while contesting the suit claimed that as per the revenue record, the property belongs to provincial Government and Maharaja Nabha had no right, title or interest in the property.

5. Upon appreciation of the pleadings, the trial Court settled the following issues for determination:-

“1. Whether the civil court has no jurisdiction to try the present suit? OPD

2. Whether the matter has already been finally decided by the Collector Nabha as alleged in the plaint? OPP

3. If issue No.2 is proved, whether the ejectment proceedings against the plaintiff are barred by principle of resjudicate? OPP

4. Whether the orders of the Commissioner Patiala dt. 4.2.1986 is illegal, null and void, abinitio and without jurisdiction and the same does not effect the right of the plaintiff? OPP

5. Whether the notice U/s 80 CPC was served upon the defendant? If so its effect? OPD

4. After the amendment of plaint, the following addition issues were framed on 10.9.1988:-

5-A Whether the plaintiffs are owner in possession of the suit land by virtue of gift deed dt. 29.3.1936?OPP

5-B Whether the plaintiffs have become owner by way of adverse possession? OPP

6. Relief.”

6. The trial Court decreed plaintiff’s suit. The State of Punjab filed the first appeal. During its pendency, an application under Order XLI Rule 27 of the CPC, 1908, was filed, which was allowed. The Court remanded the case back to the trial Court on the following three grounds :-

1. An application for additional evidence has been allowed, which would require elaborate evidence.

2. A certified copy of the gift deed has been produced, however, no application for secondary evidence has been filed.

3. The department of Horticulture has not been impleaded as a party.

7. This Court has considered the submissions made by the learned counsel for the parties.

8. Order XLI Rule 27 of the CPC, 1908 does not envisage that the Appellate Court would remand the case back to the trial Court while allowing the application for additional evidence. Remitting the case back to the trial Court is regulated by Order XLI of Rules 23 and 23-A of the CPC, 1908.

9. Order XLI of Rule 23 of the CPC, 1908 enables the Appellate Court to remand the case back to the trial Court if the trial Court decided the suit on a preliminary point, w