Mohd. Sardar (Died), Through L.Rs. and Others Vs. Rafiq Ahmed - Court Judgment

SooperKanoon Citationsooperkanoon.com/1144819
CourtMumbai Aurangabad High Court
Decided OnFeb-11-2014
Case NumberAppeal From Order No. 107 of 2009
JudgeA.I.S. CHEEMA
AppellantMohd. Sardar (Died), Through L.Rs. and Others
RespondentRafiq Ahmed
Excerpt:
1. this appeal from order under order 43 rule 1(u) of the code of civil procedure, 1908 (hereinafter referred to as the cpc for short) is filed by appellants (l.rs. of original plaintiff mohd. sardar s/o mohd. umar), against the order of remand. (i will refer to mohd. sardar as plaintiff) plaintiff mohd. sardar filed regular civil suit no. 46/1999 against the respondent rafiq ahmad (hereinafter referred to as "the defendant") in the court of civil judge, junior division, sailu for specific performance of contract, which came to be decreed on 6.7.2001. the defendant filed regular civil appeal no.89/2004 before district judge, parbhani. the principal district judge, parbhani, by judgment and order dated 14.1.2009, remanded the matter to the trial court and thus this appeal. 2. in nutshell, the matter is as under: plaintiff mohd. sardar brought the suit, claiming that defendant had entered into agreement of sale dated 19.8.1996 for the suit property for consideration of rs.50,000/-. plaintiff had paid earnest amount of rs.20,000/-. before this transaction, plaintiff was already cultivating the suit property on batai. after the agreement of sale, he continued the possession under the agreement of sale and entry in 7/12 extract of his cultivation was made. defendant did not execute sale deed and did not receive balance of consideration. defendant tried to obstruct possession of plaintiff, because of which another suit bearing regular civil suit no.42/1999 was filed for injunction. plaintiff issued notice dated 29.5.1999 to defendant to execute sale deed and on failure, filed regular civil suit no.46/1999 for specific performance. 3. defendant resisted the suit. he admitted that there was agreement of sale but denied giving possession under the agreement of sale. defendant claimed that he asked plaintiff to get sale deed executed and to pay remaining amount or cancel the agreement, but plaintiff avoided. 4. with such rival pleadings, the plaintiff brought on record oral and documentary evidence regarding the transaction. trial court observed that defendant had indirectly admitted execution of the agreement of sale and contentions raised in the written statement were not proved as defendant did not come to establish the same. the trial court found that plaintiff was in possession on the basis of agreement of sale and that revenue entries were made accordingly, as well as found that defendant failed to execute sale deed and plaintiff was ready and willing to perform his part of contract. the trial court then decreed the suit. 5. at the time of appeal, district judge, on the basis of arguments raised, recorded points whether the defendant did not get proper opportunity to adduce evidence and if the matter deserved to be remanded and whether the judgment deserved to be quashed and set aside being illegal. district judge found that the defendant had not got proper opportunity, and partly allowed the appeal on payment of costs. 6. before district judge, bar of order ii rule 2 of cpc was tried to be raised in view of the earlier regular civil suit no.42/1999 filed for injunction, but the point was rejected. 7. as regards remand, although the district judge did not proceed to elaborately examine the oral evidence already brought on record by the plaintiff, or decide other issues, he went on to examine the agreement of sale and interalia found that there were recitals that when the earnest amount was returned, the transaction of sale was to be treated as cancelled. district judge referred to the fact of closing of evidence by plaintiff on 27.2.2001 and observed that the defendant remained absent and requested several adjournments on the ground of illness of his daughter and other members of family and ultimately his application exhibit 46 was rejected. district judge noticed that defendant had not adduced evidence. district judge was impressed by the extent and type of the suit land and found it appropriate to give opportunity to the defendant to adduce evidence. district judge found that the defendant needs to be given opportunity of adducing evidence, imposing reasonable costs and the judgment deserves to be set aside. it was informed to the district judge by the counsel for plaintiff that decree of specific performance in the meanwhile had already been executed and that even the defendant had withdrawn the amount of difference of consideration. district judge found that this rather shows that the defendant had not got proper opportunity, and district judge set aside the judgment and remanded the whole suit to the trial court, giving directions that opportunity should be given to the defendant to adduce evidence in support of his claim and plaintiff should be permitted to cross-examine the defendant and his witnesses. 8. at the time of submissions, learned counsel for appellants (plaintiff) submitted that there was no basis for the district judge to hold that defendant had not got opportunity to defend. learned counsel referred to the various applications filed in the trial court for adjournment to show that the defendant was given various opportunities, but still protracted the matter on various grounds. it was claimed that, during pendency of the appeal, there was no stay and so in execution, plaintiff deposited the balance consideration and that the same was also withdrawn by the defendant and sale deed had been executed. according to the learned counsel for appellants-plaintiff, the district judge wrongly examined the agreement of sale and without basis, held that there was an imaginary transaction. according to the learned counsel, defendant was not ready and willing to perform his part of contract and so, the suit was rightly decreed by the trial court. relying on the case of ashwinkumar k. patel vs. upendra j. patel and ors., reported in (1999) 3 scc 161, the learned counsel argued that the appellate court should have itself decided the matter and there was no reason to remand. 9. on behalf of the respondent-defendant, it has been argued that at present even if it was to be held that the order of remand is not proper, still the matter may have to be again sent back to district court as the district judge has not decided the appeal by going into various other issues in dispute and has not decided the appeal on its merits. it has been submitted by the learned counsel for respondent-defendant that it would be more appropriate if the trial court gives opportunity and the matter is decided on merits. learned counsel submitted that the plaintiff is enjoying the possession and there would be no harm if defendant is given opportunity to lead his evidence. it was submitted that, the defendant, under a wrong advice, withdrew amount of balance consideration deposited by the plaintiff in execution. however, the whole consideration of rs.50,000/- has been redeposited in court on 29.1.2009. learned counsel submitted that, although there was some lapse on the part of defendant, he has paid costs, and submitted that some time can be fixed for the trial court to decide the matter. reliance has been placed on following cases to claim that, in those matters it was found that the remand to trial court was found to be necessary:- (1) 2008 (supp.) bom.c.r. 390 (new india assurance co. ltd. vs. subhash narayan thokre and ors. (2) 2006(2) bom.c.r. 765 (santa monica convent alias convento de santa monica vs. anant vithal kubal and anr.) (3) appeal from order no.89/2013 (pradip pitambar patil and anr. vs. sitaram gulabchand agrawal andors.) 10. in the matter of ashwinkumar patel (supra), relied on by appellants-plaintiffs, the hon'ble supreme court held in para nos.8 and 9 as under: "8. in our view, the high court should not ordinarily remand a case under order 41 rule 23 cpc to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. when the material was available before the high court, it should have itself decided the appeal one way or the other. . . . . . . . 9. we have also considered whether, on that account, we should send back the matter to the high court for consideration of the appeal. we are of the view that on the facts of this case, this court can decide whether the temporary injunction granted by the trial court should be confirmed or not. we are, therefore, not remitting the matter to the high court because a further remand would lead to delay and perhaps one more special leave petition to this court." it was matter at the stage of temporary injunction. 11. as regards the rulings relied on by the learned counsel for respondent referred above, the matters have their own set of facts. in the matter of "new india assurance co. ltd." (supra), on the date when the matter was fixed for first time for recording of the oral evidence of non applicants, the motor accident claims tribunal had rejected the application for want of time. in such contingency, it was found that the judgment and award passed by the tribunal could not be sustained as the same was passed without providing a reasonable opportunity. in the case of "santa monica" (supra), against exparte decree, the appellate court, while setting aside the judgment of the trial court, instead of remanding the matter, dismissed the suit on merits. thus, it became necessary to set aside the orders and remand the matter to the trial court for decision according to law. 12. in the matter of "pradip pitambar patil" (supra), it was suit to remove encroachment and the trial court had appointed commissioner. later on, without waiting for the report of commissioner, the court disposed the suit on the ground that there was no authentic map and no documentary or oral evidence was available regarding the alleged encroached portion. the district court remanded the matter and the same was upheld. present matter has to be dealt with and decided on its own set of facts as appearing from record. 13. in the matter of narayanan vs. kumaran and ors., reported in (2004) 4 scc 26, the hon'ble supreme court dealt with order 43 rule 1(u) and section 100 of the cpc. it was observed in para 17 as under : "it is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. the test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. in these circumstances, it is quite safe to adopt that appeal under order 43 rule 1 clause (u) should be heard only on the ground enumerated in section 100. we, therefore, accept the contention of mr. t.l.v. iyer and hold that the appellant under an appeal under order 43 rule 1 clause (u) is not entitled to agitate question of facts. we, therefore, hold that in an appeal against an order of remand under this clause, the high court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court." 14. keeping in view the above observations of the hon'ble supreme court, i have to confine myself to the facts, conclusions and decisions which have been arrived at by the district judge as regards order of remand. it is appropriate for me to keep in view section 100 also to see if there is substantial question of law involved requiring interference in the judgment passed by the district judge. 15. now it is a matter of fact that the defendant did file certain applications for adjournment and failed to adduce oral evidence after the evidence of plaintiff's side was closed. learned counsel for the appellant has taken me through copies of those applications to criticise the same and submits that the applications are not justified and that defendant was protracting the matter. the district judge, however, has referred to the applications and considering those applications as well as recitals of the agreement of sale and also the nature and extent of the property, found it appropriate for the ends of justice to grant opportunity to the defendant. i find that, in the set of facts of the present matter, it cannot be held that the reasons recorded by the district judge and finding that matter requires to be remanded is perverse, illegal or baseless for this court to interfere. only because on the set of facts another view could be taken, would not be a reason to upset the order of remand. 16. for such reasons, i find that, interference in the impugned judgment and order of the district court is not called for. it would be appropriate to dispose this appeal with certain directions to ensure fair opportunity to both side. 17. (a) the impugned judgment and order dated 14.1.2009 of district judge, parbhani in regular civil appeal no.89/2004 is maintained. the suit be restored to its original number. the oral and documentary evidence as was already brought on record before the trial court shall be read in evidence and defendant shall be given opportunity to adduce evidence as directed by the district judge. after giving such opportunity, the trial court shall decide the matter afresh according to law, without being impressed by reasons recorded by the district court while remanding the matter. (b) parties are directed to appear before the civil judge, junior division, sailu on 28th february 2014. the suit is expedited and the same be decided within six months of 28th february 2014. (c) this appeal from order stands disposed of as directed above, with no order as to costs.
Judgment:

1. This Appeal from Order under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC for short) is filed by appellants (L.Rs. of original plaintiff Mohd. Sardar s/o Mohd. Umar), against the order of remand. (I will refer to Mohd. Sardar as plaintiff) Plaintiff Mohd. Sardar filed Regular Civil Suit No. 46/1999 against the respondent Rafiq Ahmad (hereinafter referred to as "the defendant") in the Court of Civil Judge, Junior Division, Sailu for specific performance of contract, which came to be decreed on 6.7.2001. The defendant filed Regular Civil Appeal No.89/2004 before District Judge, Parbhani. The Principal District Judge, Parbhani, by judgment and order dated 14.1.2009, remanded the matter to the trial Court and thus this Appeal.

2. In nutshell, the matter is as under:

Plaintiff Mohd. Sardar brought the suit, claiming that defendant had entered into agreement of sale dated 19.8.1996 for the suit property for consideration of Rs.50,000/-. Plaintiff had paid earnest amount of Rs.20,000/-. Before this transaction, plaintiff was already cultivating the suit property on batai. After the agreement of sale, he continued the possession under the agreement of sale and entry in 7/12 extract of his cultivation was made. Defendant did not execute sale deed and did not receive balance of consideration. Defendant tried to obstruct possession of plaintiff, because of which another suit bearing Regular Civil Suit No.42/1999 was filed for injunction. Plaintiff issued notice dated 29.5.1999 to defendant to execute sale deed and on failure, filed Regular Civil Suit No.46/1999 for specific performance.

3. Defendant resisted the suit. He admitted that there was agreement of sale but denied giving possession under the agreement of sale. Defendant claimed that he asked plaintiff to get sale deed executed and to pay remaining amount or cancel the agreement, but plaintiff avoided.

4. With such rival pleadings, the plaintiff brought on record oral and documentary evidence regarding the transaction. Trial Court observed that defendant had indirectly admitted execution of the agreement of sale and contentions raised in the written statement were not proved as defendant did not come to establish the same. The trial Court found that plaintiff was in possession on the basis of agreement of sale and that revenue entries were made accordingly, as well as found that defendant failed to execute sale deed and plaintiff was ready and willing to perform his part of contract. The trial Court then decreed the suit.

5. At the time of appeal, District Judge, on the basis of arguments raised, recorded points whether the defendant did not get proper opportunity to adduce evidence and if the matter deserved to be remanded and whether the judgment deserved to be quashed and set aside being illegal. District Judge found that the defendant had not got proper opportunity, and partly allowed the appeal on payment of costs.

6. Before District Judge, bar of Order II Rule 2 of CPC was tried to be raised in view of the earlier Regular Civil Suit No.42/1999 filed for injunction, but the point was rejected.

7. As regards remand, although the District Judge did not proceed to elaborately examine the oral evidence already brought on record by the plaintiff, or decide other issues, he went on to examine the agreement of sale and interalia found that there were recitals that when the earnest amount was returned, the transaction of sale was to be treated as cancelled. District Judge referred to the fact of closing of evidence by plaintiff on 27.2.2001 and observed that the defendant remained absent and requested several adjournments on the ground of illness of his daughter and other members of family and ultimately his application Exhibit 46 was rejected. District Judge noticed that defendant had not adduced evidence. District Judge was impressed by the extent and type of the suit land and found it appropriate to give opportunity to the defendant to adduce evidence. District Judge found that the defendant needs to be given opportunity of adducing evidence, imposing reasonable costs and the judgment deserves to be set aside. It was informed to the District Judge by the counsel for plaintiff that decree of specific performance in the meanwhile had already been executed and that even the defendant had withdrawn the amount of difference of consideration. District Judge found that this rather shows that the defendant had not got proper opportunity, and District Judge set aside the judgment and remanded the whole suit to the trial Court, giving directions that opportunity should be given to the defendant to adduce evidence in support of his claim and plaintiff should be permitted to cross-examine the defendant and his witnesses.

8. At the time of submissions, learned counsel for appellants (plaintiff) submitted that there was no basis for the District Judge to hold that defendant had not got opportunity to defend. Learned counsel referred to the various applications filed in the trial Court for adjournment to show that the defendant was given various opportunities, but still protracted the matter on various grounds. It was claimed that, during pendency of the appeal, there was no stay and so in execution, plaintiff deposited the balance consideration and that the same was also withdrawn by the defendant and sale deed had been executed. According to the learned counsel for appellants-plaintiff, the District Judge wrongly examined the agreement of sale and without basis, held that there was an imaginary transaction. According to the learned counsel, defendant was not ready and willing to perform his part of contract and so, the suit was rightly decreed by the trial Court. Relying on the case of Ashwinkumar K. Patel Vs. Upendra J. Patel and ors., reported in (1999) 3 SCC 161, the learned counsel argued that the appellate Court should have itself decided the matter and there was no reason to remand.

9. On behalf of the respondent-defendant, it has been argued that at present even if it was to be held that the order of remand is not proper, still the matter may have to be again sent back to District Court as the District Judge has not decided the appeal by going into various other issues in dispute and has not decided the appeal on its merits. It has been submitted by the learned counsel for respondent-defendant that it would be more appropriate if the trial Court gives opportunity and the matter is decided on merits. Learned counsel submitted that the plaintiff is enjoying the possession and there would be no harm if defendant is given opportunity to lead his evidence. It was submitted that, the defendant, under a wrong advice, withdrew amount of balance consideration deposited by the plaintiff in execution. However, the whole consideration of Rs.50,000/- has been redeposited in Court on 29.1.2009. Learned counsel submitted that, although there was some lapse on the part of defendant, he has paid costs, and submitted that some time can be fixed for the trial Court to decide the matter. Reliance has been placed on following cases to claim that, in those matters it was found that the remand to trial Court was found to be necessary:-

(1) 2008 (Supp.) Bom.C.R. 390 (New India Assurance Co. Ltd. Vs. Subhash Narayan Thokre and ors.

(2) 2006(2) Bom.C.R. 765 (Santa Monica Convent alias Convento de Santa Monica Vs. Anant Vithal Kubal and anr.)

(3) Appeal from Order No.89/2013 (Pradip Pitambar Patil and anr. Vs. Sitaram Gulabchand Agrawal andors.)

10. In the matter of Ashwinkumar Patel (supra), relied on by appellants-plaintiffs, the Hon'ble Supreme Court held in para Nos.8 and 9 as under:

"8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. . . . . . . .

9. We have also considered whether, on that account, we should send back the matter to the High Court for consideration of the appeal. We are of the view that on the facts of this case, this Court can decide whether the temporary injunction granted by the trial Court should be confirmed or not. We are, therefore, not remitting the matter to the High Court because a further remand would lead to delay and perhaps one more special leave petition to this Court."

It was matter at the stage of temporary injunction.

11. As regards the rulings relied on by the learned counsel for respondent referred above, the matters have their own set of facts.

In the matter of "New India Assurance Co. Ltd." (supra), on the date when the matter was fixed for first time for recording of the oral evidence of non applicants, the Motor Accident Claims Tribunal had rejected the application for want of time. In such contingency, it was found that the judgment and award passed by the Tribunal could not be sustained as the same was passed without providing a reasonable opportunity.

In the case of "Santa Monica" (supra), against exparte decree, the appellate Court, while setting aside the judgment of the trial Court, instead of remanding the matter, dismissed the suit on merits. Thus, it became necessary to set aside the orders and remand the matter to the trial Court for decision according to law.

12. In the matter of "Pradip Pitambar Patil" (supra), it was suit to remove encroachment and the trial Court had appointed Commissioner. Later on, without waiting for the report of Commissioner, the Court disposed the suit on the ground that there was no authentic map and no documentary or oral evidence was available regarding the alleged encroached portion. The District Court remanded the matter and the same was upheld.

Present matter has to be dealt with and decided on its own set of facts as appearing from record.

13. In the matter of Narayanan Vs. Kumaran and ors., reported in (2004) 4 SCC 26, the Hon'ble Supreme Court dealt with Order 43 Rule 1(u) and Section 100 of the CPC. It was observed in para 17 as under :

"It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate question of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate Court."

14. Keeping in view the above observations of the Hon'ble Supreme Court, I have to confine myself to the facts, conclusions and decisions which have been arrived at by the District Judge as regards order of remand. It is appropriate for me to keep in view Section 100 also to see if there is substantial question of law involved requiring interference in the judgment passed by the District Judge.

15. Now it is a matter of fact that the defendant did file certain applications for adjournment and failed to adduce oral evidence after the evidence of plaintiff's side was closed. Learned counsel for the appellant has taken me through copies of those applications to criticise the same and submits that the applications are not justified and that defendant was protracting the matter. The District Judge, however, has referred to the applications and considering those applications as well as recitals of the agreement of sale and also the nature and extent of the property, found it appropriate for the ends of justice to grant opportunity to the defendant. I find that, in the set of facts of the present matter, it cannot be held that the reasons recorded by the District Judge and finding that matter requires to be remanded is perverse, illegal or baseless for this Court to interfere. Only because on the set of facts another view could be taken, would not be a reason to upset the order of remand.

16. For such reasons, I find that, interference in the impugned judgment and order of the District Court is not called for. It would be appropriate to dispose this appeal with certain directions to ensure fair opportunity to both side.

17. (A) The impugned judgment and order dated 14.1.2009 of District Judge, Parbhani in Regular Civil Appeal No.89/2004 is maintained. The suit be restored to its original number. The oral and documentary evidence as was already brought on record before the trial Court shall be read in evidence and defendant shall be given opportunity to adduce evidence as directed by the District Judge. After giving such opportunity, the trial Court shall decide the matter afresh according to law, without being impressed by reasons recorded by the District Court while remanding the matter.

(B) Parties are directed to appear before the Civil Judge, Junior Division, Sailu on 28th February 2014. The suit is expedited and the same be decided within six months of 28th February 2014.

(C) This Appeal from Order stands disposed of as directed above, with no order as to costs.