Disposed

Surjit Kaur v. Karam Banga and Anr.

Punjab & Haryana HC12 Aug 2024SAO/6/2020

Case brief

AI extract

What is this about?

First appeal over adoption-based share in suit property. The appellate court had remanded the case to the trial court on framing additional issues on adoption. The High Court held that Order 41 Rule 25 CPC applies: the appellate court may refer additional issues for trial and receive findings, but cannot remand the whole matter for fresh decision.

What the court decided

AI extract

Surjit Kaur Vs Karam Banga and Anr. — Property and Title | Punjab & Haryana HC (2024)

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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SAO No.6 of 2020(O&M) Date of Decision: August 12, 2024

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Surjit Kaur … Appellant

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Versus

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Karam Banga and another …Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA

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Present: - Mr. Parvinder Singh, Advocate for the appellant.

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Mr. Navjot Singh, Advocate for the respondents.

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DEEPAK GUPTA, J.(Oral)

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Appellant herein was the plain!ff before the trial Court. His suit for declara!on & permanent injunc!on and in the alterna!ve for joint possession was dismissed by the trial Court on 07.03.2018. In the appeal filed by him, learned Appellate Court framed certain addi!onal issues and has remanded the ma1er to the trial Court vide order dated 21.01.2020.

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Conten!on of learned counsel for the appellant is that both the par!es were well aware of their respec!ve stand and had led the evidence accordingly and even if the issue regarding adop!on of the plain!ff by Late Rampal and his wife Smt. Surjit Kaur, was not specifically framed, adequate evidence was led thereon and so, the Appellate Court should have decided the appeal on merits on the basis of material available on record. Another conten!on raised by learned counsel is that even if the addi!onal issue was framed, the Appellate Court could not have remanded the ma1er to the trial Court in view of the provisions of Order 41 Rule 25 CPC and could either record the evidence itself on the addi!onal issues framed, if any required; or call for the report of the trial Court in this regard.

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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Learned counsel for the respondents concedes to the above conten!on of the appellant only to the extent that a:er framing of the addi!onal issue, the Appellate Court could have called for the report of the trial Court and should not have remanded the ma1er.

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The appellant-plain!ff had claimed right in the suit property to the extent of 1/3 share on the basis of the fact that he was the adopted son of Rampal, who had died interstate on 18.02.1990 leaving behind him (plain!ff) as adopted son, besides mother Smt. Surjit Kaur – defendant No.1 and Rajjo and they had inherited the property in equal shares. Defendants denied the adop!on. Although, issue was framed by the trial Court to the effect that as to whether plain!ff was en!tled to the relief of declara!on and as to whether he was en!tled to the relief of injunc!on as prayed by him, but no specific issue was framed on the aspect of adop!on.

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The First Appellate Court, while remanding the ma1er, has observed in its judgment as under:-

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“10. Admi1edly, the dispute is regarding the estate of late Ram Pal son of Karam Chand as appellant is claiming that he was adopted by late Ram Pal along with his wife Surjit Kaur (present respondent no.1) on 31.07.1986 and as such, he is en!tled to 1/3rd share in the suit property and to the contrary the present respondent no.1 Surjit Kaur has submi1ed that appellant Karam Banga was never adopted by her along with her late husband Ram Pal and that a:er the death of Ram Pal she along with her mother-in-law Rajjo is en!tled to the suit property. The learned Lower Court on the basis of the pleadings had framed as many as seven issues and therea:er one addi!onal issue was also framed. However, the issue regarding the adop!on of the present appellant by late Ram Pal and his wife Surjit Kaur (present respondent no.1) was never framed. So, since it is a case of present appellant that he was adopted by Ram Pal along with his wife Surjit Kaur (present respondent no.1), as such, this Court is of the view that for the proper adjudica!on of the present controversy, it is necessary that there should have been proper framing of issues regarding adop!on etc. by the learned Lower Court. Hence,

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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this Court feels that the case should be remanded back to the learned Lower Court for deciding the same afresh a:er framing following addi!onal issues:

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6-A) Whether plain!ff is adopted son of late Ram Pal and defendant

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no.1 Smt. Surjit Kaur, on the basis of adop!on ceremony dated 31.7.1986? OPP

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6-B) Whether defendant no.1 is estopped by her act and conduct to deny the status of plain!ff as her adopted son and adopted son of late Ram Pal? OPP

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In view of the foregoing discussion, the present appeal is accordingly allowed, with no order as to costs, and in the process judgment and decree passed by the Learned Lower Court are set aside and the case is remanded back to the learned Lower Court/successor of then learned Civil Judge (Junior Division), with a direc!on to frame the above men!oned addi!onal issues and then to give three effec!ve opportuni!es each to both the par!es, for leading the evidence/cross examina!on of witnesses etc. and further directed to dispose of the case within four months from today, to come up with fresh judgment. Decree sheet be drawn. Lower Court records along with a copy of this judgment, be laid before it on 28.01.2020 for proceeding further in the ma1er.”

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Submissions of both the sides have been considered.

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The aspect of remanding the ma1er by the appellate court to the trial court a:er framing addi!onal issue, has already been considered by this Court in SAO No.74 of 2015 !tled as “Balwinder Singh v. Simar Kaur @ Simarjit Kaur and others”, decided on 06.08.2024. A:er referring to Smt. Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another, 2008(2) RCR (Civil) 367 (SC) of Hon'ble Supreme Court, besides Harikishan Vs. Smt. Anandi, 2007(1) PLR 469, it was held by this Court as under:-

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“7. A:er considering submissions, although this Court finds merit in the point raised by the ld. counsel for the appellant to the extent that ma1er should have been considered in the light of Order 41 Rule 25 CPC instead of Order 41 Rule 23A CPC, but this Court is not agreeable to the

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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prayer made by the appellant. The following are the reasons for this opinion by this Court:

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Although, the appellate court has the power to remand the

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case, but only in such circumstances, which are covered under Order 41 Rule 23, 23-A or 25 CPC. These rules may be tabulated as under:

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	Order XXXVI Code of	Civil P	rocedure
*Rule 23*	*Remand of case by Appellate*	Pre-re	quisites:
	*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, with direc�ons 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 excep�ons, be evidence during the trial a%er remand	� � Op;o � � What court: � Direc; appell � � The co �	The court, whose decree is under appeal, has disposed of the suitupon a preliminary point . The appellate court has reversed the decree. ns open for appellate court: It may remand the case may direct what issue or issues shall be tried in the case so remanded is to be done by the appellate To send a copy of its judgment and order to the concerned court ons to be sent by the ate court: To readmit the suit at original number in relevant register To proceed to determine the suit nsequence: the evidence (if any) recorded during the original trial shall, subject to all just excep!ons, be evidence during the trial a:er remand.
*Rule* *23A*	*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	Pre-re � � �	quisites: The court, whose decree is under appeal, has disposed of the suitotherwise than a preliminary point . The appellate court has reversed the decree. Retrial is considered necessary

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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	a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.	Op;ons open for appellate court: [Same as under Rule 23]
*Rule 25*	*Where Appellate Court may* *frame issues and refer them for* *trial to Court whose decree* *appealed from*— Where the Court from whose decree the appeal is preferred has omi)ed to frame or try any issue, or to determine any ques�on of fact, which appears to the Appellate Court essen�al to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the addi�onal evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its	Pre-requisites: � The court, whose decree is under appeal,has disposed of the suit has o omi1ed to frame any issue or o omi1ed to try any issue, or o to determine any ques!on of fact � The appellate court considers it essen!al for the right decision of the suit upon the merits Op;ons open for appellate court: � May frame issues, and � refers the same for trial to the concerned court � To direct such court to take the addi!onal evidence required What the trial court has to do: � To proceed to try such issues, and � To return the evidence to the Appellate Court together with its findings thereon and the reasons therefor � within such !me as may be fixed by the Appellate Court or extended by it from !me to !me
	findings thereon and the reasons therefor within such �me as may be fixed by the Appellate Court or extended by it from �me to �me.”

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Thus, under Rule 23, the Appellate Court can remand, when the ma1er was disposed of by the trial Court upon a preliminary issue and the decree is reversed in appeal. Necessary direc!on can be given by the

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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Appellate Court as to what issues are to be tried on the ma1er being remanded. Under Rule 23-A, when the trial Court has disposed of the case, otherwise than on a preliminary issue and the decree is reversed in appeal and re-trial is considered necessary, then the Appellate Court has the same powers as are under Rule 23. Under Rule 25, order for remand can be made by the Appellate Court, when the trial Court has omi1ed to frame or try any issue or determine any ques!on of fact and Appellate Court considers it to be essen!al for the right decision of the suit on merits.

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In the case of Smt. Bachahan Devi (supra) , a:er referring to Order 41 Rule 25 CPC, Hon’ble Supreme Court held as under: -

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“ 8. There is no scope for any doubt that in a suit as well as the first appeal all disputed facts are open for decision. A point of fact is not to be decided in second appeal where only a substan!al ques!on of law is to be looked into. There is some amount of controversy as to whether the provisions are mandatory, notwithstanding the fact that the word 'may' has been used. The First Appellate Court is the last Court of facts.

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Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essen!al for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take addi!onal evidence required. The order of remand should not be passed as a ma1er of rou!ne. The First Appellate Court which has the power to analyse the factual posi!on can decide the issue and the addi!onal issues. In the instant case the First Appellate Court, inter alia, observed as follows:

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"As such, it would not be proper for the first Appellate Court in such ma)er to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present ma)er under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present ma)er also the Appellate Court has framed 6 addi�onal issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings rela�ng to said legal and factual issues a%er itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ra�o laid down by the Hon'ble High Court is fully

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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applicable in the present ma)er."

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A bare reading of the provision makes it clear that the same comes into opera!on when the Court, from whose decree the appeal is preferred, has omi1ed to frame or try and issue, or to determine any ques!on of fact which appears to the appellate court essen!al for the right decision of the suit upon the merits. In order to bring in applica!on of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omi1ed to frame issues and/or has failed to determine any ques!on of fact which in the opinion of the appellate court are essen!al for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further ques!on that arises is whether in such a case the appellate court is bound to direct the trial court to take addi!onal evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes opera!ve when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take addi!onal evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where addi!onal evidence may not be required. But where the addi!onal evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omi1ed to frame or try any issue or to determine any ques!on of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the par!es cannot be barred from arguing the whole appeal a:er the findings are received from the court of the first instance. This posi!on was highlighted in Gogula Gurumurthy and Others v. Kurime9 Ayyappa (1975(4) SCC 458), where it was inter-alia observed in para 5 as follows: "We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the par!es cannot be barred

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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from arguing the whole appeal a:er the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 All 384). "

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Thus, from the legal posi!on as explained above by the Hon’ble Supreme Court as above, it is clear that when the Appellate Court finds that some issues are to be re-framed or re-casted and some addi!onal evidence is required, it may refer the same for trial to the court from whose decree the appeal is preferred (trial court in this case) and then then the trial Court has to return the evidence so recorded to the Appellate Court together with the findings thereon and the reasons thereof. As has been made clear by Hon’ble Supreme Court that when the finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole or in part and therefore, the par!es cannot be barred from arguing the whole appeal a:er the findings are received from the Court of first instance. Thus, a:er framing addi!onal issues or cas!ng issues, though the appellate Court under Order 41 Rule 25 CPC can remand the ma1er to the trial Court with the direc!on to record evidence and return findings on those issues, but the trial Court could not be directed to re-decide the issues on all the points.

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As far as Order 41 Rule 23A CPC is concerned, it is not applicable to the facts of the present case because though the trial Court had disposed of the suit otherwise than on a preliminary point by giving finding of all the issues in the present case, the appellate Court has framed addi!onal issues and has re-casted some issues and therefore, it is Rule 25 of Order 41, which CPC will be applicable.”

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Thus, from the legal posi!on as explained above by the Hon’ble Supreme Court as above, it is clear that when the Appellate Court finds that some issues are to be re-framed or re-casted and some addi!onal evidence is required, it may refer the same for trial to the court from whose decree the appeal is preferred ( trial court in this case ) and then the trial Court has to return the evidence so recorded to the Appellate Court together with the findings thereon and the reasons therefof. As has been made clear by Hon’ble Supreme Court that when the finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

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SAO No.6 of 2020(O&M)

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2024:PHHC:103904

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or in part and therefore, the par!es cannot be barred from arguing the whole appeal a:er the findings are received from the Court of first instance. Thus, a:er framing addi!onal issues or cas!ng issues, though the appellate Court under Order 41 Rule 25 CPC can remand the ma1er to the trial Court with the direc!on to record evidence and return findings on those issues, but the trial Court could not be directed to re-decide the issues on all the points.

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In view of the above legal posi!on, though order of the appellate court in framing addi!onal issues pertaining to adop!on of plain!ff and estoppel of defendant, is maintained, but it is held that the impugned order dated 21.01.2020 of the Appellate Court cannot be sustained to the extent of remanding the ma1er to trial court for fresh decision. The said order to that extent is hereby set aside. The case is remanded back to the Appellate Court first to consider as to whether evidence/material already on record is sufficient to give findings on the addi!onal issues as framed by it and if the appellate court, finds that evidence is required on addi!onal issues, then it can ask the trial Court to return the evidence recorded on addi!onal issues as framed by the said Appellate Court, to get findings thereon and reasons thereof and then Appellate Court is to decide the ma1er/appeal afresh a:er receipt of the evidence/finding by the trial Court on the addi!onal issues as framed by the Appellate Court.

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Disposed of accordingly.

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August 12, 2024		(DEEPAK GUPTA)
sarita		JUDGE
	Whether reasoned/speaking:	Yes/No
	Whether reportable:	Yes/No

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Sarita Rani 2024.08.13 02:38 I attest to the accuracy of this document/order

Surjit Kaur v. Karam Banga and Anr.

Case brief

What is this about?

What the court decided

Surjit Kaur v. Karam Banga and Anr.

Case brief

What is this about?

What the court decided

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