Allowed

The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar Ltd. by G.M.(Legal) Sh.Neeraj Kumar Srivastava v. Shiv Chandra and Another

Allahabad HC17 Aug 2023/67/2023

Case brief

AI extract

What is this about?

In a second appeal, the Allahabad High Court held that the lower appellate court erred in setting aside a trial court decree without considering evidence or additional framed issues. The appeal was allowed, and the matter remitted to the lower court for fresh decision on merits.

What did the court decide?

Judgment of the lower appellate court set aside; matter remitted for fresh decision within four months.

The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar… — Property and Title | Allahabad HC (2023)

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Reserved

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Neutral Citation No. - 2023:AHC-LKO:54373

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Court No. - 19

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Case :- SECOND APPEAL No. - 67 of 2023

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Appellant :- The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar Ltd. By G.M.(Legal) Sh.Neeraj Kumar Srivastava Respondent :- Shiv Chandra And Another Counsel for Appellant :- Pritish Kumar,Shantanu Gupta Counsel for Respondent :- Prabhakar Vardhan Chaudhary,Anil Kumar Mishra

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Hon'ble Jaspreet Singh, J.

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The instant second appeal was admitted by this Court on 08.05.2023

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on a solitary question of law which reads as under:-

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"(a) Whether the lower Appellate Court has erred in exercise of powers under Section 96 CPC while dealing with the first appeal and ignoring to consider the contentious issues which were framed before it relating to limitation as well as the rights of the appellant and the nature of their possession which was crucial question?"

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Shri Pritish Kumar, learned counsel for the appellant who has submitted that the respondents/plaintiff had initially instituted a suit for permanent injunction. It was the case that the plaintiffs claimed title over the property in question. This was disputed by the defendant-appellant on the ground that they had registered lease deed in their favour and they are in possession and thus the plaintiffs neither is the owner nor in possession and as such the suit is liable to be dismissed.

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It has further been urged that the trial court after considering the evidence on record dismissed the suit against which the plaintiffrespondents filed regular civil appeal before the lower appellate court and an application for amendment was moved and the plaintiff-respondents sought a decree of mandatory injunction as well as possession and mense

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profits. Though initially the application for amendment was rejected, however, this was assailed in a writ petition which was allowed and thereafter the lower appellate court on two separate dates had framed additional issues. The appeal came to be dismissed against which the plaintiff-respondents preferred a second appeal before this Court which was allowed on the ground that there was no compliance of framing of points for determination as required in Order 41 Rule 31 CPC and thus the lower appellate court was directed to decide the matter afresh.

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It is submitted that even while a direction was issued to the lower appellate court to decide the matter afresh. The least that was required of the lower appellate court was to have considered the case of the respective parties and considered the evidence led by the parties and then record its independent finding. Without considering the issues, the evidence it has reversed the findings in a casual manner which is not in consonance with the powers vested with the lower appellate court. In the aforesaid facts and circumstances, it is urged that the appeal deserves to be allowed.

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Per contra, Shri P. V. Chaudhary, learned counsel appearing for the plaintiff-respondents submits that the decision rendered by the lower appellate court has been passed after hearing the parties and declaration of right made in favour of the plaintiff being findings of fact are not liable to be interfered in exercise of powers under Section 100 CPC.

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The record would indicate that the plaintiff-respondents had initially instituted a suit for permanent and injunctions bearing No.34 of 1992 wherein it was pleaded that the defendant-appellant be restrained from interfering in the possession in respect of property bearing No.277, measuring 1.75 hectares, situate within the

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nagarpalika limits, Gola Gokrannath, Pargana Haidrabad, District Lakhimpur Kheri. It has also claimed that illegal constructions made by the defendant be demolished. The plaint was amended and thereafter relief of possession and damages for wrongful use and occupation was also added.

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The suit was contested by the defendant-appellant and the trial court upon exchange of pleadings framed five issues. After leading the evidence, the trial court recorded a finding that the plaintiff was not in possession nor the rights as claimed by the plaintiff could be established whereas the rights of the defendants were established on the basis of lease and even the possession of the defendants was not disputed. Accordingly it found that the plaintiff was not entitled to a decree of injunction and thus by means of judgment and decree dated 01.04.1995 the suit came to be dismissed.

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The record further indicates that the plaintiff-respondents preferred Regular Civil Appeal No.80 of 1995 which was heard by the Additional District Judge, Court No.4, Lakhimpur Khiri and the findings returned by the trial court were affirmed by means of judgment and decree dated 30.09.2015.

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After dismissal of the first appeal the plaintiff-respondents preferred second appeal No.1 of 2016 which was considered by a Coordinate Bench of this Court and by means of judgment dated 31.08.2017 it allowed the second appeal and remitted the matter directing the appellate court to frame points of determination as required under Order 41 Rule 31 CPC and further directed that the appeal would be decided within a period of one year and till then the

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parties were directed to maintain status quo. After the order was passed by this Court in Second Appeal No.1 of 2016, the matter was once again required to be decided by the lower appellate court.

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The lower appellate court by means of order dated 15.03.2023 has allowed the Appeal NO.80 of 1985 and while setting aside the judgment and decree dated 01.04.1995 it declared the plaintiffs to be the owners of the property in question and directed the defendants to the suit to remove their constructions and also pay damages. It is being aggrieved against the aforesaid judgment and decree dated 15.03.2023 passed in Civil Appeal No.80 of 1995 that the appellant has approached this Court.

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Having considered the submissions of the parties and from the perusal of the material on record, what is noticed in context with the question of law which has been framed, the record reveals that while the appeal was pending before the lower appellate court at two stages. Additional issues were framed. Firstly on 26.06.2010, two issues were framed:- (i) as to whether the plaintiff after seeking amendment had paid the appropriate court fee and the other was whether the suit was time barred; secondly on 12.02.2014 two additional issues were framed as to whether in the year 1953 Smt. Assho Biwi and Mento Biwi were authorized to execute any lease in favour of the defendants? (ii) Whether the defendant had illegally occupied the property in question and for which the plaintiff is entitled to seek damages and if so how much?

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The record would also indicate that after the aforesaid additional issues were framed. It was incumbent upon the lower

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appellate court to have considered each issues and gives its own independent findings thereon. However, the lower appellate court has not considered evidence nor appropriately given an independent finding on the issues which were framed and as noticed above.

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It will also be relevant to notice that once the second appeal was allowed by this Court in the year 2017 solely on the ground that the point of determination was not framed. The lower appellate court ought to have adhered to that mandate but at the same time it is not appropriate for the lower appellate court to merely have formulated a point for determination and gives its finding without considering the evidence as well as the new additional issues that have been framed. At this stage, it will be relevant to notice the dictum of the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari [Santosh Hasari Vs. Purushottam Tiwari, (2001) 3 SCC 179] and Sudarsan Puhan Vs. Jayanta Ku. Mohanty and others reported in 2018 (10) SCC Online 552.

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From the perusal of the aforesaid decisions, it would be clear as to how a first appellate court is required to exercise its jurisdiction and consider and decide an appeal. First appeal is an important right in the hands of the parties where both the issues of law and fact are open to be re-considered. In the instant case, it would be found that the lower appellate court has mechanically exercised its power by merely formulating a point of determination but without considering the evidence and the additional issues which were framed and have not been able to give its own independent finding and such course of action as adopted by the lower appellate court can neither be

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appreciated nor is desirable in law.

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Shri P. V. Chaudhary, learned counsel for the respondents though made submissions regarding the merits, however, could not dispute the fact that the lower appellate court has not considered the additional issues that were framed nor the evidence in respect thereto has been considered and there is no finding in this regard.

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This Court finds that neither the evidence led by the parties has been discussed nor the documentary evidence has been noticed and what will be its impact on the respective rights of the parties has also not been considered. However, the lower appellate court has not also met with the reasons and infrence drawn and recorded by the trial court and has brushed the findings without any reason which is apparently not expected of a court exercising powers under Section 96 read with Order 41 Rule 31 CPC.

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In view of the aforesaid, this Court is of the clear view that the judgment and decree dated 15.03.2023 passed by the Additional District Judge, Court No.4/Special Court E.C. Act, Lakhimpur Khiri passed in Civil Appeal No.80 of 1995 cannot be sustained and is accordingly set aside and the matter shall stand remitted to the lower appellate court once again who shall after hearing the parties and affording full opportunity of hearing shall re-decide the appeal on merits in light of the observations made herein above taking into consideration, the additional issues as well as the evidence on record and a fresh finding be recorded in accordance with law. Since the parties have been litigating since 1995, accordingly this Court also deems appropriate that a direction be issued to the lower appellate

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court that it shall endeavour to hear and conclude the hearing of the appeal and decide the same preferably within a period of four months, from the date a copy of this judgment is placed before the court concerned. The parties shall appear before the lower appellate court on 4th of September, 2023.

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In light of the aforesaid, the appeal is allowed. In the facts and circumstances, there shall be no order as to costs. The lower court record shall be remitted expeditiously.

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Order Date :- 17th August, 2023 ank/-

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar Ltd. by G.M.(Legal) Sh.Neeraj Kumar Srivastava v. Shiv Chandra and Another

Case brief

What is this about?

What did the court decide?

The Hindustan Sugar Mills Now Bajaj Hindusthan Sugar Ltd. by G.M.(Legal) Sh.Neeraj Kumar Srivastava v. Shiv Chandra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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