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RAM DHANI versus RAM RAJ & OTHERS

High Court of Judicature at Allahabad

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Ram Dhani v. Ram Raj & Others - FIRST APPEAL FROM ORDER No. - 766 of 1984 [2007] RD-AH 18415 (28 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.1

First Appeal From Order No.766 of 1984

Ram Dhani Vs. Ram Raj and others.

Hon'ble Prakash Krishna.

Raising a short controversy the present appeal is at the instance of defendant of suit no.170 of 1976. The appeal is directed against the order dated 8th of May, 1984 passed by the Additional District Judge in civil appeal no.128 of 1982 whereby it has set aside the decree of trial court and remanded the matter for fresh decision of the suit in the light of directions made in the body of the judgement.

A suit for specific performance of contract to sell was instituted in respect of agricultural land on the basis that Ram Lal son of Sampati had executed a registered agreement to sell dated 6th of October, 1975 in his favour for a sum of Rs.5,000/- out of which Rs.3,000/- was given as earnest money. The said suit was contested on a number of pleas. The trial court after recording evidence and considering the merits of the respective submissions of the parties, dismissed the suit by judgement and decree dated 20th of September, 1992. Before the trial court as many as 10 issues were framed. The said decree was challenged by the plaintiff by filing civil appeal no.128 of 1982 which has been allowed by the order under appeal.

Heard learned counsel for the parties and perused the record.

The present appeal as pointed out above, arises out of a suit for specific performance of contract to sell. The suit was dismissed on merits by the trial court. The appellant court has remanded the matter for fresh decision directing the trial court to frame an issue with regard to the question of possession of the respective parties. The said approach of the appellate court is not legally correct. The suit was for specific performance of contract to sell and in such a matter the question of possession is not at all material. What is material, is about the genuineness of agreement to sell in question. If the suit is ultimately decreed, the possession will follow automatically.

Learned counsel for the respondents vehemently argued that the appellate court was justified in passing the remand order in as much as the trial court has committed error in various findings recorded by it. Be that as it may, the same cannot be a ground to pass an order of remand. If there is an error in the judgement and decree of trial court, the appeal should have been allowed accordingly. Even if there is some error in the judgement of the trial court, the matter should have been decided finally instead of restoring the matter back to the trial court. By passing an order of remand time, money and energy spent, all will go waste. It has been held repeatedly that an order of remand should not have been passed in a routine manner.

It has been held by Apex Court that remand order should not be passed in a routine manner.The Apex Court in the case of AIR 1975 1409 P.Venkateswarlu versus Motor & General Traders has held that if a finding is required on a particular issue then the entire order of the trial court should not be set aside. A finding on the said issue may be called for from the Trial Court. Remital of whole case by appellate court to trial court when a finding on a particular issue is required, is illegal.

Learned counsel for the appellant has rightly placed reliance on a judgment of this Court in Vishwanath Copra Vs. First Additional District Judge, Allahabad and others, 1998(2) ACJ 1366 wherein it has been held that an order of remand can be passed under Order 41 Rule 23 or Order 41 Rule 23-A of CPC. The relevant portion is reproduced below:-

"13. The provisions under Order 41 Rule 23-A says that if the decree is reversed, so keeping in view the definition of word decree, I am of the view that if the decree is to be reversed meaning thereby any and every finding or on all or any of the matters in controversy in the suit is to be reversed but in the instant case the revisional Court has only set aside the judgment and decree without making any observation regarding the finding given by the trial court in favour of the petitioner on the question of fact and law under Section 20(4) of the Civil Procedure Code, therefore, the judgment cannot be said to be the judgment in accordance with law."

In this view of the matter, the order of remand cannot be sustained. Appeal succeeds and is allowed. The matter is restored back to the appellate court to hear and decide the appeal afresh on merits uninfluenced by any of the observations made by me in the body of the judgement.

No order as to costs.

(Prakash Krishna, J)

Dt.28.11.2007

LBY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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