(ORAL)
1. List has been revised.
2. Heard Sri M.M. Haq, learned counsel for the appellants and Sri Vikas Pandey, learned counsel for the respondents are present.
3. The appellants have assailed the order dated 11th January, 2017 passed by learned Additional District Judge, Gonda, in Misc. Civil Appeal No.53 of 2016 (Surendra Kumar vs. Smt.Priyanka and another), by filing present appeal under Order XLIII Rule 1 (u) of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.").
4. Succinctly stating the facts of the case are that the respondent/Surendra Kumar filed a suit for cancellation of sale deed dated 16.04.2004 and permanent injunction bearing Suit No.475 of 2011. The appellants/defendants contested the suit by filing written statement on various grounds, inter alia, that suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act" and the civil court has no jurisdiction to entertain and try the suit. On the pleadings of the parties, the trial court framed issues. Issue No.7 was whether the suit is barred by Section 331 of the U.P.Z.A. & L.R. Act ?
5. By order dated 29.05.2015, learned trial court returned a filing that suit is barred by Section 331 of the U.P.Z.A. & L.R. Act and the plaint was returned to the plaintiff (respondent herein) under Order VII Rule 10 of the C.P.C.
6. Against the said order, the respondent/plaintiff filed a Misc. Civil Appeal bearing No.53 of 2016. Vide impugned order dated 11.01.2017, the appeal was allowed and the case was remanded back to the Civil Judge for deciding the case afresh.
7. Being aggrieved by the said order dated 11.01.2017, the appellants have preferred the present appeal.
8. Leaned counsel for the appellants submits that the suit was barred by the provisions of Section 331 of U.P.Z.A. & L.R. Act and the civil court has no jurisdiction to entertain and try the suit.
9. Learned counsel for the appellants also submits that the appeal was allowed and the appellate court remanded the matter to the trial court for deciding the matter afresh, however, the appellate court could have decided the said issue.
10. On the other hand, learned counsel for the respondent submits that the civil court has jurisdiction to decide the suit for cancellation of sale deed and the suit was not barred by Section 331 of U.P.Z.A. & L.R. Act
11. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. I have also gone through the material available on record.
12. Before adverting the facts of the present case, it is necessary to consider the provisions of Rule 23 and 24 of Order XLI of C.P.C. Rule 23 and 24 of Order XLI of C.P.C. read as under:-
"23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23-A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
13. On perusal of provisions of Rule 23 Order XLI of C.P.C. it is clear that where the Court has disposed of the suit on a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded. Rule 23A of Order XLI of C.P.C. provides that where the Courts from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under Rule 23. Rule 24 of Order XLI of C.P.C. provides that where the evidence on record is sufficient, appellate court may determine case finally, instead of remanding the same to the lower court.
14. It is settled principle of law that the powers under Section 96 of C.P.C. are wide. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the appellate court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the appellate court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.
15. The scope and ambit of the first appellate court under Section 96 of C.P.C. have been considered in 'Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs.', (2001) 3 SCC 179, in the said case the Hon'ble Supreme Court held (at pages 188-189) as under:-
"The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
16. In 'Madhukar & Others v. Sangram & Others', (2001) 4 SCC 756, the Hon'ble Supreme Court reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
17. Further, in the case of 'B.V. Nagesh and another v. H.V. Sreenivasa Murthy', (2010) 13 SCC 530, the Hon'ble Supreme Court after taking note of all the earlier judgments laid down following principle with regard to Order XLI of C.P.C. which is as follows:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 of C.P.C. deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must,... therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions putforth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p.188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p.758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
18. In 'State Bank of India & Anr. v. Emmsons International Ltd.& Anr.' (2011) 12 SCC 174, the Hon'ble Supreme Court reiterated the aforesaid principles.
19. Also, the Hon'ble Supreme Court considered the provisions of Rule 23 of Order XLI of C.P.C. in 'P. Purushottam Reddy And Anr. v Pratap Steels Ltd', (2002) 2 SCC 686, it was held:-
"11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to Clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not-in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision."
20. Undisputedly, Section 107 of the C.P.C. empowers the appellate court to remand a case but it also empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 of Order XLI of the C.P.C. provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is settled principle of law that the first appellate court has power to remand the case if the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues.
21. In the instant case, the respondent/ plaintiff filed a suit for cancellation of sale deed dated 16.04.2004 and permanent injunction, written statement was filed by the defendant/appellant. The trial court framed several issues and apart from other issues, issue No.7 was framed as under:-
"Whether the suit is barred by Section 331 of U.P.Z.A. & L.R. Act?"
22. The said issue being purely legal was treated as preliminary issue. The trial court returned a finding that the suit is barred by Section 331 of U.P.Z.A. & L.R. Act and the plaint was returned under Order VII Rule 10 of the C.P.C. The appellate court was to examine whether such finding of the trial court was sustainable or not in law and on facts. Otherwise also, the question could have been gone into by the appellate court and a finding could have been recorded on the basis of material available on record as the appellate court being the court of first appeal, all the questions of fact and law arising in the case were open before it for decision.
23. In view of the aforesaid discussion, the appeal is allowed, impugned order dated 11.01.2017 passed by learned Additional District Judge, Gonda, in Misc. Civil Appeal No.53 of 2016, is set aside and the matter is remanded back to the first appellate court to decide the appeal after hearing both the parties, in accordance with law.
24. Both the parties are directed to appear before learned District Judge, Gonda on 21.01.2020, who will decide the appeal himself or assign the same to some other competent court to decide the appeal, expeditiously and preferably within a period of three months, in accordance with law.
25. A copy of this judgment be sent to learned District Judge, Gonda.
(Ved Prakash Vaish) Judge Order Date :- 19.12.2019 cks/-