Disposed

Teja Singh v. Major Singh and Ors.

Punjab & Haryana HC5 Aug 2024SAO/54/2017

Case brief

AI extract

What is this about?

First appellate court allowed additional evidence under Order 41 Rule 27 CPC but wrongly remanded the case to the trial court for fresh decision. The High Court set aside the remand portion of that order and directed the appellate court to obtain the trial court's report on the additional evidence and then decide the appeal itself.

What did the court decide?

Impugned order's remand direction set aside; appellate court directed to call trial court's report on additional evidence and decide appeal itself.

Teja Singh Vs Major Singh and Ors. — Civil Procedure and Limitation | Punjab & Haryana HC (2024)

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S. No.111

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of Decision: 05.08.2024

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1. SAO No.54 of 2017 (O&M)

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Teja Singh .....Appellant Vs. Major Singh and others .....Respondents

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2. CR No.3736 of 2017

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Teja Singh .....Pe55oner Vs. Major Singh and others .....Respondents

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CORAM:HON'BLE MR. JUSTICE DEEPAK GUPTA

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Present:Mr. Munish Jolly, Advocate for the appellant/ pe��oner. Mr. R.M. Sharma, Advocate for respondents No.1 to 3.

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DEEPAK GUPTA, J.

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Civil Suit No.08 of 2009 �tled “Major Singh and others Vs. Teja Singh and others”, for decree for possession was dismissed by the Court of learned Civil Judge (Junior Division), Dhuri vide judgment & decree dated 04.09.2012. The suit was brought by plain�ffs- Major Singh etc., by pleading their �tle on the basis of a judgment and decree dated 26.08.1995 passed in Civil Suit No.80 of 1995 �tled Major Singh and others Vs. Gurdev Singh.

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1.2 During the appeal [CA N: 173 of 2012] filed by plain�ffs- Major Singh etc., an applica�on under Order 41 Rule 27 CPC was moved to place on record the judgment & decree dated 26.08.1995, which in fact was the basis of the suit filed by the plain�ffs and on which basis, they had claimed �tle to the suit property.

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1.3 By way of impugned order dated 16.03.2017, learned Addi�onal District Judge, Sangrur allowed the abovesaid applica�on gran�ng permission to the plain�ffs- appellants to lead addi�onal evidence

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RENU and remanded the case to the trial Court with the direc�on to provide 2024.08.06 16:10 I attest to the accuracy andintegrity of this document Page No.1 out of 5 pages Chandigarh

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opportuni�es to the par�es to lead evidence. By se<ng aside the judgment and decree of the trial Court, direc�on was given to decide the case afresh.

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Against the afore-said order, SAO No.54 of 2017 has been filed by one of the defendants – Teja Singh, contending that a>er allowing the addi�onal evidence, the Appellate Court could not have remanded the case to the trial Court for fresh decision.

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On the other hand, CR No.3736 of 2017 has been filed to assail the same order dated 16.03.2017 of the Appellate Court, whereby applica�on for addi�onal evidence has been allowed. The conten�on is that judgment and decree dated 26.08.1995 were very much in the knowledge of the plain�ffs- respondents since beginning and, therefore, applica�on has been wrongly allowed. It is also contended that suit was not dismissed by the trial Court for non-produc�on of the said judgment & decree and rather the same was duly taken into considera�on.

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Respondents have opposed SAO as well as the revision.

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Heard.

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As far as the CR No.3736 of 2017 is concerned, it has no merit. Plain�ffs- respondents ( appellants before the First Appellate Court ) only prayed for tendering copy of judgment and decree dated 26.08.1995, which was the very basis of their suit. The judgment and decree passed by the Court is otherwise per-se admissible in evidence and as such, the First Appellate Court did not commit any error in permi<ng the plain�ffs to produce the said judgment and decree on record, which is within the powers of appellate court under Order 41 Rule 27 (1) (b) of the Civil Procedure Code.

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However, the conten�on raised in SAO No.54 of 2017 to the effect that the First Appellate Court could not have remanded the maCer to

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the trial Court for its decision afresh, a>er permi<ng to adduce addi�onal evidence, has substance.

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This aspect has been discussed in detail by this Court in SAO No.9 of 2017 �tled “Rajinder Kumar Vs. Lalit Mohan”, decided today itself i.e. 05.08.2024, wherein it has been held as under:”-

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“16. Coming to the third point raised by learned counsel for the appellant, Order 41 Rule 28 CPC reads as under:-

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“28. Mode of taking addi�onal evidence .—Wherever addi"onal evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court ”

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A bare perusal of the abovesaid provision clearly indicates that when the applica�on for adducing addi�onal evidence is allowed, as in the present case, the Appellate Court has two op�ons open to it:-

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(i) it may record the evidence itself, or

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(ii) it may direct the court from whose decree the appeal is preferred

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( trial Court in this case ) to do so.

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This provision does not indicate that the Appellate Court can remand the case in above circumstances to the court from whose decree the appeal is preferred. Rather, in case the appellate court adopts the second op�on i.e., direct the court from whose decree the appeal is preferred ( trial Court in this case ) to take addi�onal evidence, then the direc�on is to go further to the effect that concerned court, a>er recording evidence, has to return it to the appellate court.

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Of course, the trial Court has the power to remand the case, but only in such circumstances, which are covered under Order 41 Rule 23, 23-A or 25 CPC………………

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Thus, under Rule 23, the Appellate Court can remand, when the maCer 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 Appellate Court as to what issues are to be tried on the maCer 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 per Rule 23. Under Rule 25, order for remand can be made by the Appellate Court, when the trial Court has omiCed to frame or try any issue or determine any ques�on of fact and

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Appellate Court considers it to be essen�al for the right decision of the suit on merits.

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In the present case, none of the situa�ons as are referred in Rule 23, 23-A and 25 of Order 41 of CPC were before the First Appellate Court and as such, the remand order could not have been passed.

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In view of the legal posi�on as expounded above by Hon’ble the Apex Court, it is thus clear that before seeking remand, it is obligatory upon the appellant to bring the case under Order 41 Rule 23, 23-A or 25 of CPC and the Appellate Court is required to record reasons as to why it has taken recourse to any one out of three Rules of Order 41 of CPC for remanding the case to the trial Court.

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In view of the aforesaid discussion, it is held that the order dated 15.11.2016 passed by the First Appellate Court remanding the maCer to the trial Court, a>er allowing applica�on under Order 41 Rule 27 CPC, cannot be sustained in the eyes of law, as present case is not covered under either of the provision of Order 41 Rule 23, 23-A or 25 of CPC.”

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In the present case also, the provisions of Order 41 Rule 23, 23A and Rule 25 are not applicable under which the maCer could have been remanded by the Appellate Court. Since the addi�onal evidence was permiCed to be taken under Order 41 Rule 27 CPC, therefore, the further procedure was to be followed as per Rule 28 of Order 41, under which the only op�on available to the Appellate Court is either to record the evidence itself or to direct the Court from whose decree, the appeal is preferred (trial Court in this case) to do so. Order 41 Rule 28 does not permit the Appellate Court to remand the case in the afore-said circumstances. In case, the Appellate Court adopts the second op�on i.e. direct the Court from whose decree the appeal is preferred (trial Court in this case) to take addi�onal evidence, then direc�on is to go further to the effect that the concerned Court a>er recording evidence has to return it to the Appellate Court.

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In view of the afore-said discussion, the impugned order dated 16.03.2017 of learned Addi�onal District Judge, Sangrur is hereby set aside, to the extent whereby the impugned judgment & decree dated 4.9.2012 of

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the trial Court were set aside and the trial Court was directed to decide the maCer afresh a>er taking the addi�onal evidence.

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The present SAO is hereby disposed of with the direc�on to the Appellate Court to call for the report from the trial Court regarding receipt of the addi�onal evidence as allowed by the First Appellate Court and a>er receiving the report of the trial Court, decide the appeal in accordance with law.

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Disposed of accordingly.

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A photocopy of this order be placed on the file of connected

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case.

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August 0	5, 2024		(DEEPAK GUPTA)
renu			JUDGE
	Whether Speaking/reasoned	Yes/No
	Whether Reportable	Yes/No

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RENU 2024.08.06 16:10 I attest to the accuracy and integrity of this document Chandigarh

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Teja Singh v. Major Singh and Ors.

Case brief

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Teja Singh v. Major Singh and Ors.

Case brief

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