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2010 Supreme(All) 3965
ALLAHABAD HIGH COURT
S.S.Chauhan, J.
Sonu Gupta -Appellant
Versus
Shanti Devi -Respondent
First Appeal from Order No. 535 of 2007
Decided On : 10-11-2010
The appellate court should exercise caution in ordering a remand and should decide the case on its merits when the evidence is available, avoiding unnecessary delays and prejudice to the parties.
Headnote:
Remand - Property Dispute - Order 20 Rule 3, Order 41 Rule 31 CPC - P. Purushottam Reddy and another Vs. Pratap Steels Ltd., 2002 (20) LCD 831, Ashwinkumar K. Patel Vs. Upendra J.Patel and others,1999 (1) Allahabad Rent Cases, (SC) 650, Vishnu Gopal and others Vs. Prem Dutt Gautam, 2007(1) AWC 383
Fact of the Case:
The plaintiff filed a suit for cancellation of a sale deed and eviction. The trial court dismissed the suit, and the appellate court remanded the matter for deciding the case afresh. The plaintiff appealed against the remand order.
Finding of the Court:
The appellate court's remand order was set aside as it did not fully appreciate the evidence on record and did not reach an independent decision as required by law.
Issues: Validity of the remand order, power of the appellate court to re-appreciate evidence, and the correctness of the remand in light of legal precedents.
Ratio Decidendi: The appellate court should exercise caution in ordering a remand, especially when the evidence has not been fully appreciated and a perverse finding has been recorded. The appellate court should decide the case on its merits when the evidence is available and not unnecessarily remand the matter to the trial court.
Final Decision: The appeal was allowed, and the remand order was set aside. The matter was remitted to the appellate court to decide the appeal in accordance with law after considering the evidence on record and reaching an independent decision by recording cogent findings.
Heard learned counsel for the plaintiff-appellant and the learned counsel for the defendant-respondent.
2. The present appeal has been filed for setting aside the judgement and decree dated 21.3.2007 passed by the Addl. District Judge, Barabanki.
3. Brief facts of the case are that the plaintiff-appellant filed a Regular Suit No. 157 of 1987 with the prayer that the house in question numbering G/1087/1196 situated in Mohalla-Kanoongoyan, City Nawabganj, District Barabanki with the boundaries mentioned therein was stated to be purchased by Raghunath s/o Kandhai from one Raghunath s/o Vishram vide sale deed dated 5.10.1953. It was further stated in the Suit that out of wedlock of first wife ( Smt. Shyama Devi) of Raghunath one daughter namely Smt.Shanti Devi (defendant-respondent) was born. Smt. Shayma Devi expired much before and thereafter Raghunath s/o Kandhai married Smt. Yadurai. There was no issue out of the wedlock of Raghunath and Smt. Yadurai and Raghunath expired 10 years prior to the date of institution of the Suit and Smt. Yadurai died on 31.7.1986. It was further stated that the said house was sold to Smt. Yadurai by Radhunath s/o Kandhai vide sale deed dated 6.11.1970 and by virtue of sale deed Smt. Yadurai became owner of the said house and she remained in possession till she was alive. It was further stated that Raghunath also lived in the said house till he was alive. It was further stated in the Suit that Smt. Yadurai was earlier married to one Sunder Lal s/o Bhagwan r/o village Narthuwa and out of wedlock of Smt. Yadurai and Sunder one daughter Smt. Chanda was born and when Smt. Yadurai was married to Raghunath, her daughter Chanda also came along with her mother and started living along with Raghunath. It was further stated that Raghunath got married Smt Chanda with the father of plaintiff-appellant and Smt. Chanda expired soon after the plaintiff-appellant was born. The plaintiff-appellant came into possession of the house in question after death of Smt. Yadurai.
4. The defendant-respondent used to visit Raghunath's house off and on and she did not take in good taste regarding sale of house to Smt. Yadurai. Smt. Yadurai seriously fell ill prior to her death and she died out of Cancer. After rituals of Smt. Yadurai took place the defendant-respondent expressed her desire to live in Barabanki and she also desired to open a betel shop which father of the appellant gave permission to live in the house and also gave small place to carry on the said betel shop. Later on the said shop was closed. The defendant-respondent moved an application in the Nagar Palika for mutating her name and when plaintiff-appellant came to know about the said application, he inquired about the said application and came to know that a sale deed has been executed on 6.11.1970 in favour of defendant-respondent Smt. Shanti Devi. The said sale-deed is alleged to have been executed by an impostor and so the plaintiff-appellant filed Suit for cancellation of the sale deed along with the eviction and damages.
5. Written statement was filed in the Suit and parties led their evidence before the trial court. The trial court after considering the material on record dismissed the said Suit vide judgement and decree dated 24.3.1998.Feeling aggrieved with the said judgement and decree Regular Civil Appeal No.21 of 1998 was filed and the appellate court after considering the material on record remanded the matter to the trial court for deciding the case afresh after taking into consideration the observations made in the body of judgement and after hearing both the parties,hence this appeal.
6. Submission of learned counsel for the plaintiff-appellant is that the appellate court has not appreciated the evidence on record in the correct perspective and proceeded to remand the matter in respect of validity of the sale deed. His further submission is that the appellate court instead of undertaking the exercise and recording his fin
