Appeal against high court order remanding civil suit for fresh trial. Court allowed appeal challenging remand order, holding lower appellate court's decision to permit defense and remand was legally sound.
Appeal rejected; trial court directed to decide suit afresh.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 3216/2018
Dine Khan S/o Shri Kasam Khan, Aged About 58 Years, B/c Muslim, R/o Village Mawadi, Tehsil Siwana, District Barmer (Raj.)
----Appellant
----Respondents
For Appellant(s) : Mr. Khet Singh
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
03/01/2019
Appellant-plaintiff has preferred this appeal under Order XLIII Rule 3(u) read with Section 104 CPC to challenge judgment and order dated 26th of October, 2018, passed by District Judge, Balotra (for short, ‘learned lower appellate Court’), whereby learned lower appellate Court, while setting aside judgment and decree of Civil Judge & Judicial Magistrate, Siwana (for short, ‘learned trial Court’) dated 14th of November, 2017, remanded matter back for deciding the suit afresh after taking on record written statement of the respondent-defendants.
Facts in brief are that appellant-plaintiff filed a suit for recovery of a sum of Rs.1,39,544 against respondents before the learned trial Court. It so happened that no written statement was filed on behalf of the respondent-defendants, and therefore, the
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learned trial Court, while forfeiting their right to file written statement, proceeded to decide the suit. Finally, the learned trial Court decreed the suit. Being aggrieved by the same, respondent-defendants preferred regular first appeal before the learned lower appellate Court. The learned lower appellate Court, after examining the matter, allowed appeal of the respondents and taken their written statement on record subject to payment of cost of Rs.5,000. Having exercised its discretion in taking written statement of the respondent-defendants on record, the learned lower appellate Court, while resorting to Order XLI and Rule 23, 23A & 24 CPC, remanded the matter back to learned trial Court for deciding the suit afresh.
I have heard learned counsel for the appellant at length.
While dilating on the scope of remand under Order XLI Rule 23, 23A & 24 CPC, learned counsel for the appellant has placed reliance on following judgments:
| (1) | Municipal Corporation, Hyderabad Vs. |
|---|---|
| Sunder Singh [2008(2) WLC (SC) Civil 504] | |
| (2) | Pratap Ram Vs. Chela Ram [2013 WLC (Raj.) UC 590] |
| (3) | Guljar Ali Vs. Smt. Saroj Devi [2011 (4) WLC (Raj.) 305] |
| (4) | [2014(1) WLC (Raj.) 137] |
The power of the appellate Court to remand matter back is envisaged under Order XLI Rule 23, 23A & 24 CPC and while exercising the power of remand, concern of the appellate Court is to satisfy itself that remand is called for proper adjudication of the
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case. In the instant case, as a matter of fact, the learned trial Court decreed the suit without there being any defence of the defendants inasmuch as their right to file written statement was forfeited. The learned lower appellate Court, while construing provisions under Order VIII Rule 1 CPC being not mandatory, in its discretion, for doing substantial justice in the matter, permitted the respondent-defendants to file written statement subject to payment of cost of Rs.5,000. Once the learned lower appellate Court has exercised its discretion of permitting the respondents to file written statement on payment of cost, obviously, exercise of its jurisdiction to remand the matter back to learned trial Court for deciding the suit afresh cannot be faulted. The original judgment and decree was passed by the learned trial Court without there being any written statement on record, and therefore, the respondents were precluded from putting their defence to the claim of the appellant. In totality, in my opinion, discretion exercised by the learned lower appellate Court, in the factual backdrop of the case, cannot be categorized as perverse or dehors the law inasmuch as in appropriate cases appellate Court can exercise inherent power to prevent end of justice being defeated.
A very significant fact that learned lower appellate Court has permitted respondent-defendants to file written statement subject to payment of cost, in my opinion, has ipso facto facilitated remand of the matter to learned trial Court. The judgment of Supreme Court in Sunder Singh (supra), relied upon by learned counsel for the appellant, is clearly distinguishable inasmuch as in the said case appellate Court not only allowed application under Order XLI Rule 27 CPC for allowing additional evidence but also
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remanded the matter without recording reasons. Likewise, in Pratap Ram (supra), a coordinate Bench of this Court has found remand order laconic being contrary to Rule 24 of Order XLI CPC and therefore, said judgment is also clearly distinguishable. The other two judgments are also factually distinguishable. It is also noteworthy that scope of judicial review against remand order is very much limited and such appeal cannot be treated as akin to regular first appeal. Moreover, the reasons, which are forthcoming from impugned judgment and order of remanding the matter back to learned trial Court, are just and proper warranting no interference in exercise of appellate jurisdicton.
Consequently, the appeal fails and same is hereby rejected. However, the learned trial Court is expected to decide the suit afresh as early as possible keeping in view the fact that it was filed in the year 2015.
(P.K. LOHRA),J
2 issues framed by the court
Whether the High Court should interfere with the lower appellate court's order remanding the matter for fresh adjudication.
Whether the appellate court's exercise of discretion to allow a written statement and remand the case was perverse or arbitrary.
Colour shows how this judgement treated each authority
Municipal Corporation, HyderabadDistinguished¶24
Municipal Corporation, Hyderabad Vs. Sunder Singh [2008(2) WLC (SC) Civil 504]
Pratap RamDistinguished¶24
Pratap Ram Vs. Chela Ram [2013 WLC (Raj.) UC 590]
Guljar AliDistinguished¶20
Guljar Ali Vs. Smt. Saroj Devi [2011 (4) WLC (Raj.) 305]
5 provisions across 3 enactments
DINE KHAN S/O SHRI KASAM KHAN
THE REGIONAL FOREST OFFICER, SIWANA
THE DEPUTY FOREST CONSERVATOR, BARMER
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
