SHOBH NATH Vs. BATASHA DEVI

JUDGEMENT

(1.) HEARD Sri M.N. Singh, learned counsel for the defendant-appellant and Sri Atul Kumar Pandey, learned counsel for the plaintiff-respondent No.1. Respondent No.2 and 3 are proforma respondents who were defendants in the suit along with defendant-appellant as such there appearance is not necessary. Learned counsel for the contesting parties aforesaid agree for the final disposal of the appeal at the admission stage. The appeal is directed against the judgment and order of remand dated 17.2.2009 passed by the Additional District Judge, Court No.13 whereby Civil Appeal No. 18 of 2006 has been allowed and the judgment and order of the Court of first instance dated 6.3.3006 passed in Original Suit No. 212 of 1994 (Smt. Batasa Devi Vs. Sobh Nath and others) has been set aside and the matter has been remanded for retrial. The submission of the learned counsel for the appellant is that the remand order has been passed solely on the ground that an issue with regard to the validity of the will dated 15.4.1966 was not framed by the Court of first instance on which point two additional issues were framed for which evidence is required to be adduced. This cannot be a valid criteria for remand. He further submits that the appellate Court could have decided the additional issues itself as the evidence in that regard was sufficient and moreover in view of Section 107 C.P.C. even if the evidence was not sufficient the appellate Court itself could have recorded the evidence. Admittedly, a suit was instituted by the plaintiff-respondent No.1 for permanent injunction on the basis of the unregistered will dated 15.4.1966 alleged to have been executed by one Antu. The suit was contested by the defendant-appellant who had set-up his title on the basis of the sale deeds dated 4.6.1984 and 27.9.1973. The first sale deed was executed by Jagat Dev, son of Antu in favour of Kanhaiya and Chedi Lal and the other sale deed was executed by the aforesaid two persons in favour of the Smt. Dhanwanti, wife of Sobh Nath, defendant-appellant and on the basis of the aforesaid sale deeds the name of Smt. Dhanwanti was also mutated. The suit was however, dismissed by the Court of first instance and it was held that the will is not admissible in evidence and is not duly proved. Aggrieved the plaintiff-respondent No.1 preferred Civil Appeal No. 18 of 2006. A perusal of the aforesaid judgment and order of the lower appellate Court indicates that the lower appellate Court has framed two additional issues which are regarding the validity of the will dated 15.4.1966 and it has been held that the validity of the will was the main issue of determination which was not framed ans as such was not properly determined by the court below and, therefore, the matter requires reconsideration. Section 107 C.P.C. permits the appellate Court to determine the case finally and to frame issues and if necessary to refer them to the Court below for trial and further to take additional evidence. Rule 25 of Order XLI is also clear in this regard, it permits the appellate Court to frame issues and to remit them for trial to the court below who can decide the same after taking additional evidence if required. Order XLI Rule 24 C.P.C. also specifically provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court after resettling the issues, if necessary, may finally determine the suit. In view of the aforesaid provisions the appellate Court is clearly vested with the power to frame additional issues, to remit those issues to the trial court for recording findings or if the evidence is otherwise sufficient to dispose of the appeal finally even on the additional issues. In view of the aforesaid, the lower appellate Court could not have remanded the matter as a whole to the Court of first instance for retrial. At best the lower appellate Court could have remitted the two additional issues to the trial Court for taking necessary evidence and to record finding thereof. This could have been done only if a finding has been recorded that the evidence on record is not sufficient to decide the aforesaid two issues which is lacking. There is even no finding that evidence on these two issues is not sufficient and cannot be recorded in appeal. A perusal of the judgment and order of the trial Court indicates that the parties were concious of the fact that one of the questions involved in the suit is with regard to the validity of the will and they have adduced sufficient evidence in that regard. The original will was produced and it was taken back after a photocopy of the same was retained on record. The will is also said to have been proved by the oral evidence of one of the attesting witnesses. In view of the above, it cannot be said that the evidence was in any way lacking and was not sufficient enough to enable the lower appellate Court to pronounce the judgment on the additional issues so framed. In view of the aforesaid facts and circumstances, the remand by the lower appellate Court is not justified. Accordingly, the impugned judgment and order dated 17.2.2007 passed by the Additional District Judge, Court No.13 in Civil Appeal No. 18 of 2006 (Smt. Batash Devi Vs. Sobh Nath and others) is set aside with the direction to the lower appellate Court to decide the appeal as a whole on merits and if necessary after recording evidence on the additional issues itself or by remitting the two additional issues to the trial Court for recording evidence and recording finding thereon. The appellate Court below would ensure speedy disposal of the appeal preferably within a period of six months from the date of production of the certified copy of this order. Appeal allowed. No order as to costs.