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HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Murari Lal v. Ram Kumar Ojha and another
Miscellaneous Appeal No.788 of 2010 (Gwalior) : against the order dated 20.4.2010, passed by First Additional District Judge, Shivpuri in Civil First Appeal No.5-A/2009; Decided on 20.8.2014
Held : In the instant case, as a matter of fact, the impugned judgment and decree suffers from perversity of approach, as despite the fact that the trial Court has considered the order passed by the Sub-Divisional Officer dated 8.7.2009 passed in compliance of the order passed in Civil Suit No.6-A/1997 along with other documentary evidence relating to revenue record to reach the conclusion that the appellants-defendants were not entitled to seek mutation over the suit land falling in survey No.869 of plaintiff's ownership and possession, the first appellate Court has observed that trial Court has not properly considered and decided I.A. No.23. Consequently, has not considered aforesaid documents. As a matter of fact, after consideration of the evidence on record first appellate Court ought to have reached the conclusion for reversing the findings so recorded by the trial Court and thereafter, should have applied the mind as to whether the re-trial was necessary.
Admittedly, the first appellate Court has not dealt with the appeal on merits and made an observation that the aforesaid evidence was not dealt with by the trial Court while recording the aforesaid findings and that is the reason why the impugned judgment and decree suffers from perversity of approach.
The first appellate Court has in fact erroneously exercised the jurisdiction under Order XLI rule 23 CPC while ordering remand of the case to the trial Court for fresh decision instead of deciding it on merits. Hence, the impugned judgment and decree is not sustainable in the eye of law and therefore, liable to be set aside.
It is directed that the first appellate Court shall decide the appeal on merits after affording due opportunity to both the parties, expeditiously. (2008)8 SCC 485 followed. (2002)2 SCC 686 referred to.
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izFke vihy us okLro esa ekeys dk xq.kkxq.k ij fofu’p;u djus ds ctk; u, fljs ls fofp’p;u ds fy, fopkj.k U;k;ky; dks izfrizs”k.k dk vkns’k ikfjr djus es flfoy izfØ;k lafgrk ds vkns’k 41 fu;e 23 ds v/khu vf/kdkfjrk xyrh ls iz;qDr dh gSA blfy,] fu.kZ; rFk fMØh fof/k dh n`f”V esa fLFkj j[ks tkus ;ksX; ugha gS vkSj blfy, vikLr fd, tkus ;ksX; gSA
;g funsf’kr fd;k tkrk gS fd izFke vihy U;k;ky; nksuks i{kdkjksa dks LkE;d~ volj iznku djus ds Ik’pkr~ ‘kh?kzrk ls vihy dk xq.kkxq.k ij fofu’p;u djsxkA ¼2008½8 ,l lh lh 485 vuqlfjrA ¼2002½2 ,l lh lh 686 fufnZ”VA ¼IkSjk 12] 13] 14 ,oa 15
1. This appeal by defendant under Order XLIII rule 1(u) of CPC is directed against the order dated 20.4.2010 in Civil First Appeal No.5A/2009. By the aforesaid order, the appeal of plaintiff has been allowed and the case has been remanded back to the trial Court for decision afresh on merits.
2. The moot question involved in this appeal is as regards object and scope of power of appellate Court under Order XLI rule 23A of CPC.
3. The Hon'ble Supreme Court in the case of Municipal Corporation, Hyderabad v. Sunder Singh [(2008)8 SCC 485], has lucidly and succinctly explained the scope and application of the aforesaid provision, as contained under Order XLI rule 23 of CPC with reference to nature of jurisdiction of the appellate Court. Relevant para 18 of the judgment is reproduced below :
“18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the Court should loathe to exercise its power in terms of Order 41 rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate Court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate Court cannot shirk its duties.”
4. Order XLI rule 23A of CPC in the statute w.e.f.1.2.1977 provides for application of Order XLI rule 23 of CPC in the matters where the court from whose decree an appeal is preferred has disposed of the case otherwise than on preliminary point, and the decree is reversed in appeal and re-trial is considered necessary, the appellate court shall have the same powers as it has under Order XLI rule 23 of CPC. As such, the twin requirements of the provision are to the effect that ; (i) The trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and re-trial is considered necessary. In other words, if the appellate Court finds a judgment under appeal to be not satisfactory in the manner required by Order XXII rule 3 CPC or Order XLI rule 21 CPC and, hence, it is not a judgment in the eyes of law, it may set aside the same and send the matter back for rewriting of the judgment so as to protect valuable rights of the parties. However, the appellate Court should be circumspect in ordering remand and it should not be exercised when the case is not covered either by rule 23 or 23A of Order XLI of CPC as an unwarranted order of remand unnecessary prolongs the litigation, which in all fairness should be avoided. (2002)2 SCC 686 (P. Purushottam Reddy and another v. Pratap Steels Ltd.), is referred to. Though the provision confers discretionary jurisdiction on the appellate court, but order of remand should not be passed routinely.
5. Facts necessary for disposal of this appeal are to the effect that the plaintiff's suit for declaration, permanent injunction and recovery of possession has been dismissed. Subject-matter of the suit relates to agricultural land falling in survey Nos.869 and 870 situated at village Kalamadh, Tahsil Pohari, District Shivpuri. According to plaintiff, survey No.870 is the part of old survey No.681/2 admeasuring 0.31 hectare. 1/6th whereof was purchased by defendant from one Ramkishan s/o Motilal vide registered sale-deed dated 26.6.1986, however, as the Patta in favour of Ramkishan was cancelled, therefore, the sale-deed became null and void. However, defendant No.1 by exercise of his influence over the revenue authorities has managed mutation of his name in respect of the aforesaid land. That was the subject-matter of litigation and ultimately by the orders of the Board of Revenue the order of recording defendant No.1's name in respect of the land falling in survey No.870 was maintained. However, the Tahsildar deliberately has made the land of plaintiff's ownership and possession falli
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