Court : Supreme Court of India
Brief : An order of remand should not be passed routinely by the appellate court-if does not agree with the decision of the trial court.
Citation : CIVIL APPEAL NO. 3627 OF 2008
Municipal Corporation, Hyderabad Versus
Sunder Singh
CIVIL APPEAL NO. 3627 OF 2008
(Arising out of SLP (C) No.23522 of 2004)
Municipal Corporation, Hyderabad ...
Appellant
Versus
Sunder Singh ... Respondent
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against a judgment and order dated 8.4.2004
whereby and whereunder the High Court of Judicature at Hyderabd set aside
the judgment and order dated 24.4.1998 passed by the VII Senior Civil
Judge, City Civil Court, Hyderabad in O.S. No. 573 of 1991 and remanded
the matter back to the learned trial judge.
2
Devi Singh is the predecessor-in-interest of the respondent. The
original dispute between the parties centered round 1250 square yards of
land purported to be situated in a market called `Maidan Bazaar Jamerath'
situate at Karvan Aspan and bounded on the east by canal and police
station, on the west by `Bakar Mandi, on the north by cement road,
graveyard and huts belonging to the plaintiff and on the south by land, huts
and graveyards belonging to the plaintiff. It was said to be the ancestral
property of the plaintiff and was owned by him having been purchased by
his ancestors.
In the said suit, Devi Singh sought for permanent injunction
restraining the appellant herein from interfering with his peaceful
possession and enjoyment over the said property. The said property
consisted of open land.
The said suit was decreed on or about 9.4.1960. An appeal was
preferred thereagainst by the appellant, which by a judgment and order
dated 16.2.1967 was allowed by the High Court of Andhra Pradesh.
3. Devi Singh preferred an appeal before this Court. The fact of the
matter has been discussed in details by this Court in a judgment reported in
Devi Singh v. Municipal Corporation, Hyderabad [(1973) 4 SCC 66].
3
From a perusal of the said judgment, it appears, that a purported claim
was made by Dhan Singh over 2750 square yards bearing Survey Nos. 5943
and 5944 situated at Karwan Aspan on the premise that he had filed an
application before the competent authority in the year 1921 stating that the
same had fallen into the prohibited area. Indisputably, the property
involved in the said suit had been acquired and compensation had been
awarded to Dhan Singh for 1250 square yards and not for the entire plot of
the area which is said to be 2750 square yards. This Court found that the
plot for which compensation had been paid to Dhan Singh for an area of
1250 square yards was far removed from the Bazaar and there were several
other plots which intervened. It was furthermore noticed that it was
somewhat difficult on the present state of the record to reconcile the case of
the defendant Corporation that the entire area covered by the sale deed had
been acquired for which compensation had been paid to Dhan Singh with
the relative situation of the Bazaar and the plot measuring 1250 square
yards. It was held:
15. It is difficult to ignore the entire proceedings before
the Sarfe-Khas and the documentary evidence according
to which possession was given of the land or the
property including the Bazaar by the Sarfe-Khas to the
plaintiff after a full investigation of his claim in the
matter. There was no allegation that all those
proceedings were without jurisdiction or were collusive
although it has now been suggested before us on behalf
of the defendant Corporation that the Sarfe-Khas
4
Department had ceased to exist in February 1949 by
virtue of the Sarfe-Khas Merger Regulation 1358 Fasli.
There is no indication in the orders of the various
authorities including that of the Minister that the Sarfe-
Khas had ceased to have any jurisdiction about deciding
whether the property over which the Sarfe-Khas laid
claim was the property of a private individual or was part
of the personal estate of the erstwhile Nizam of
Hyderabad.
16. It has been maintained before us on behalf of the
plaintiff that the orders made by the Sarfe-Khas were
admissible and relevant under Section 13 of the
Evidence Act. These points were not gone into by the
courts below and have still not been decided and we do
not wish to express any opinion on them. The
agreements to which reference has previously been made
by us and which were not produced by the Corporation
before the trial court would have also thrown a good deal
of light on the points in controversy. In our judgment this
is a fit case in which a remand is necessary to the trial
court. The trial court shall decide the matter afresh only
on issues relating to title and possession of the parties
with the exception of such legal points which have
already been disposed of by us. Both the parties will be
at liberty to ask for such amendments in the pleadings
may be strictly necessary for clarification on the question
of title and possession. But no such pleas will be allowed
to be introduced which may change the nature of the
case. Fresh evidence can also be adduced confined only
to these two matters by both sides. It will be for the trial
court to get a complete investigation made with regard to
the various matters already mentioned by us by a
Commissioner if any of the parties make an application
in that behalf. Both sides have expressed willingness to
produce before the trial court all such documents which
are relevant and which are in existence to enable the
court to dispose of the question of title and possession of
both the parties in a satisfactory manner.
5
4. Devi Singh died. Thereafter, his heirs and legal representatives were
brought on record. Admittedly, no amendment had been sought for
pursuant to or in furtherance of the observations made by the Court. Parties,
however, adduced additional oral and documentary evidence.
5. The suit was again decreed in favour of the respondents.
Thereagainst, an appeal was preferred which was marked as C.C.C.A. No.
112 of 1975. By reason of a judgment and order dated 20.7.1979, the said
appeal was allowed. No further appeal was preferred thereagainst. It,
therefore, attained finality between the parties.
6. Respondents herein, however, on or about 3.6.1991 filed O.S. No.
573 of 1991 for title and possession of the property, the description whereof
is as under:
"SCHEDULE OF PROPERTY
All that the property admeasuring sq. yards
situated at Jumerath Bazar, Hyderabad and is
bounded by
North : Plaintiff's property and Main Road
(cement);
South : Remaining property of the plaintiff;
6
East : Nalla and Plaintiff's property;
West : Remaining property of plaintiff.
7. A decree was prayed for grant of a permanent injunction and a
direction upon the respondent - Corporation to render accounts for the
amounts realized by wrongful auction. Admittedly, an interlocutory
application was filed therein for adducing secondary evidence of documents
purported to have been marked in the said O.S. No. 7 of 1959.
The said application was dismissed. By a judgment and order dated
24.4.1998, the said suit was dismissed. An appeal was preferred
thereagainst which by reason of the impugned order dated 8.4.2004 has
been allowed and as noticed hereinbefore, remitted to the trial court..
8. Mr. L N. Rao, learned Senior Counsel appearing on behalf of the
appellant would submit that keeping in view the earlier round of litigation
the findings of the fact arrived therein must be held to have attained finality
and thus the High Court has committed a grave error in setting aside the
judgment of the learned trial judge and remanding the matter back to it. It
was urged that in the earlier round of the litigation not only the question of
title but also possession having been gone into in respect of the self same
property, the impugned judgment should not have been passed.
7
9. Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
respondent, on the other hand, would contend that having regard to the
provisions contained in Order XLI Rule 23 of the Code of Civil Procedure
as amended by the State of Andhra Pradesh as also in view of the fact that
the properties are different, the second suit was maintainable. It was urged
that as some vital documents had been missing, a prayer was made for
adduction of secondary evidence in respect of the documents which had
been relied upon by the appellant - Corporation in the earlier suit itself.
It was pointed out that by an interim order dated 27.8.1998, the
appellant - Corporation has been receiving a sum of Rs.5,000/- per week
from the respondent and thus this Court may not exercise its jurisdiction
under Article 136 of the Constitution of India.
Order XLI Rule 23 of the Code reads thus:
"Remand of case by Appellate 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, which directions 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
8
trial shall, subject all just exceptions, be evidence
during the trial after remand."
The amendment which is applicable for the State of Andhra Pradesh
is same as that of the State of Madras, which reads as under:
"(a) After the words "the decree is reversed in
appeal", insert the words "or where the Appellate
Court in reversing or setting aside the decree
under appeal considers it necessary in the interest
of justice to remand the case"; and
(b) delete the words "if it thinks fit", occurring
after the words "the Appellant Court may"."
10. Order XLI Rule 23 would be applicable when a decree has been
passed on a preliminary issue. The appellate court must disagree with the
findings of the trial court on the said issue. Only when a decree is to be
reversed in appeal, the appellate court considers it necessary, remand the
case in the interest of justice. It provides for an enabling provision. It
confers a discretionary jurisdiction on the appellate court.
11. It is now well settled that before invoking the said provision, the
conditions precedent laid down therein must be satisfied. It is further well
settled that the court should loathe to exercise its power in terms of Order
XLI Rule 23 of the Code of Civil Procedure and an order of remand should
9
not be passed routinely. It is not to be exercised by the appellate court only
because it finds it difficult to deal with the entire matter. If it does not agree
with the decision of the trial court, it has to come with a proper finding of its
own. The appellate court cannot shirk its duties.
12. The issues which were framed by the trial court are as under:
"1. Whether plaintiff has got title to the suit property?
2. Whether plaintiff is entitled to recover possession
of the property shown in green colour of the plaint
rough sketch?
3. Whether the defendant is liable to render
accounts?
4. Whether plaintiff is entitled for injunction in
respect of the vacant site of 2790 square yards?
5. Whether the suit is not maintainable?
6. To what relief?"
13. The High Court noticed the contentions of the respondent that the
trial court ought not to have rejected the interlocutory application for
adduction of secondary evidence. It was contended that a second suit was
filed only because despite liberty granted by the Supreme Court, the plaint
was not amended. Even therefore, the scope of amendment was limited. No
new case was to be made out.
10
14. The High Court framed the following question for its consideration,
namely, as to whether it is just and proper to look into the merits of the case
in the absence of secondary evidence sought to be adduced by the plaintiff.
While upholding the contentions of the appellant that it was not open
to the respondent to file a present suit and even if the documents are taken
into consideration the same would not create any difference of opinion
before the trial court, having regard to the binding nature of the judgment of
the High Court, it was held:
"I am of the opinion that though there is a force in
the contention of the learned counsel for the
defendant, but the fact remains that the trial Court
also relied on some of the earlier documents
mentioned in CCCA No.112 of 1975 without
receiving them into evidence."
It was furthermore opined:
"It is not just and proper to deal with the merits of
the case as it may act adversely to the interest of
her respective parties. I am of the view that the
present suit was filed for declaration of the title in
respect of the Item No.1 of the plaint schedule of
properties and for recovery of the possession of
mesne profits. It is stated that item No.1 of the
suit land was covered by the Jumerath Bazar and
Devi Singh has lost the title in respect of 1250
square yards as held in the earlier litigation filed
for injunction. The title of the Devi Singh in
11
respect of the other property was not at all decided
in the earlier suit and it is the case of the plaintiff
that unless Exs.B-1 to B-80 and Exs. X-1 to X-47
documents which are printed book filed before the
Supreme Court are received as secondary
evidence, it will amount to deprive the valuable
right of the plaintiff to lead secondary evidence to
substantiate his contention in the plaint. The trial
court having rejected the request of the plaintiff to
lead secondary evidence, held that barring exhibits
filed in the suit, the plaintiff did not file any
documentary evidence either with regard to his
possession or with regard to any part of the suit
schedule property or about his possession in 1940
or delivery of possession by the M.C.11 as
contended by him and the judgment in CCCA
No.112 of 1975 has become final. The Trial Court
further held that the plaintiff has not filed a scrap
of paper to establish his possession in respect of
item `A' of schedule property of 2790 square
yards."
It was furthermore opined:
"The documents sought to be filed cannot be
marked by this Court in view of the disputed facts
and the said documents have to be marked by way
of adducing secondary evidence, which will
subject to the objections and cross-examination by
the defendant. Therefore, I am of the opinion that
it is a case to remand to trial Court. It is just and
proper for the trial Court to consider the request of
the plaintiff to receive the secondary evidence in
accordance with law. Therefore, it is just and
proper to mark the documents, relied on by both
the parties in the earlier suit and consider the same
which were already considered by this Court in
CCCA No.112 of 1975. If authenticity of any of
the documents in the book prepared by the
12
Supreme Court is doubted, it is always open for
the defendant to take an objection and also
confront the said document to the witness of the
plaintiff.
I am of the view that an opportunity should have
been given to the plaintiff and the plaintiff cannot
be thrown out from giving an opportunity in the
peculiar facts and circumstances of the case to lead
secondary evidence and therefore, without going
into all other questions and without expressing any
view on the merits of the case, I am of the view
that it is just and proper to remand the matter to
permit the plaintiff and also the defendant to lead
secondary evidence in respect of the documents
sought to be filed by them."
With respect, the approach of the High Court was not correct. It for
all intent and purport failed to perform its duties.
15. In the earlier round of the litigations, the Division Bench of the High
Court arrived at its own conclusion. One of the questions which fell for
consideration of the Division Bench was as to whether as regards the
identity of the land acquired by the City Improvement Board and to
determine whether Dhan Singh had been paid compensation for whatever
land he had been possessing, it was held:
"Ex.D-5 passed by the Compensation Court
in the year 1915, Dhan Singh did not make any
other claim for compensation. This will
probabilise that if really he was owning any
13
greater extent of property, he would have claimed
compensation such large extent of property as
well. The absence of such a claim is a strong
probability that he was not owning any land in
excess of 125 (sic for 1250) sq. yards, for which
compensation was provided and paid to him.
Dhan Singh made a claim for some plot bearing
No.5945/D adjacent to the slaughter house under
Ex.D-10. He would appear to have also filed a
plan along with the petition but the identity of that
plenary is left obscure. There is no evidence in
identification as to how the claim made under
Ex.D-10 was but however claimed that Dhan
Singh made an admission even then that the plot
bearing No.5945/D was also within the prohibited
areas."
16. The standard of proof applicable in a civil suit is the preponderance
of probability. The question had been determined having regard to the fact
that the predecessor-in-interest of the respondent confined its case only to
1250 square yards of land. The effect of the judgment of the earlier suit has
been taken note of. The High Court furthermore noticed the contention that
Dhan Singh should have been paid compensation for the entire 2750 square
yards of land, but the fact remains that they had never claimed any
compensation for any land beyond 1250 square yards and in the said factual
backdrop, it was held:
"We have carefully analysed the evidence
regarding possession which consists of both
documentary and oral evidence. These documents
relate to the period 1928 to 1954. Ex.D/7 of the
14
year 1928 gives indication that the Sarfekhas was
collecting some rents on the Jumerath Bazar area
and the City Improvement Board was requesting
the Sarfekhas Authorities to hand over all such
rents collected by them, and they have also
informed the Sarfekhas that the property belonged
to the City Improvement Board. In the year 1929,
some merchants in hide sand skins would appear
to have been using portion of the land on the bank
of the river Musi for conducting their trade."
Upon considering the entire documentary evidence, it was held:
"The Sarfekhas was evidently proceeding on the
basis that the suit property was part of Kivan Jung
and the City Improvement Board was claiming
that all rents realized from Zumerath Bazar should
be credited to the accounts of the Board. It is no
doubt true that in Ex.X-1 reference is made that
the Chowda Bazarath was handed over to the
Municipality in the year 1946, but it looks to us
that the suit property would not have been a part
of this Chowda Bazar for two reasons. The first
reason is that it was specifically mentioned as a
separate item when the contract was given to Fateh
Mohammad and no reference was made at all to
Jumerath Bazar in the contracts given either to
Shaik Dawood or Shaik Yakub Saheb. Secondly
Ex.X/1 include the suit property as a separate item
under the list of gardens and lands. In the oral
evidence, it is no doubt elicited, that this Jumerath
Bazar is included as one of the Chowda Bazarath
and that these markets was handed over to the
Municipality in the year 1946 under the agreement
executed between the Sarfekhas and the
Corporation. It is argued for the respondents that
an adverse reference should be drawn against the
Corporation for not producing the agreement. It is
also contended that the circumstances would
negative the title put forward on behalf of the
Corporation. We find no substance in either of
15
these contentions. In Ex. X-1, itself a remark was
made that notwithstanding the execution of
agreement between the Corporation and the
Sarfekhas authorities, the Corporation has not
been paying any amount ever since the amount
came into existence. That would indicate that the
agreement was not acted upon by the Corporation
so far as at least the suit property is concerned. In
the nature of things when the title of the property
belonged to the Corporation after it was handed
over to its management by the City Improvement
Board, the suit property would not have been
mentioned in the agreement referred to by the
plaintiffs. The oral evidence discloses that the
original agreement is with the Sarfekhas
authorities to produce the records. The original
agreement is with the sarfekhas. It was the
plaintiff that summoned the sarfekhas authorities
to produce the records. The original agreement
available with the sarfekhas has not been
produced. No adverse inference can therefore, be
drawn against the Municipality that it has no title
to the property or that it recognized the title of
sarfekhas to the property. We have earlier stated
that the plaintiff did not claim title to the property
through the Sarfekhas and that even the sarfekhas
authorities, who claimed title to the property as
forming part of the Kivan Jung, have given up
their claim by about the year 1949."
The Division Bench furthermore took into consideration the fact that
the acquisition took place long time back and thus some papers might have
been lost or removed and the absence thereof in the file could not throw any
suspicion on the authenticity of the vesting which took place during those
years. The Division Bench concluded its judgment, stating:
16
"We have earlier given reasons that it was the
corporation that was in possession of the property
and not Devi Singh was making efforts to come
into possession of the property by making false
assertion that he was the owner of the property and
that his property was extending upto the police
station challenging the east. The circumstances
remains to that though he filed the original sale
deed Ex.P.12, he has not produced the plan
attached thereto in this suit. We are not satisfied
that the said plan continued to remain in
possession of the Serfekhas authorities before
whom he would appear to have produced it. When
he is having the custody of Ex.P.12 original, the
normal presumption is that he would also be
having custody of the plan which formed part of
Ex.P.12. The suit for injunction was filed by Devi
Singh shortly after the proceedings under Sec.107
Cr.P.C. initiated against him ended in his favour
and it is common ground that ever since he filed
the suit, interim injunction issued in his favour has
been in force. Any act of possession after the
issue of the said interim injunction will not assist
Devi Singh's claim to have been in possession of
the property on the date of the suit in any manner.
The plaintiffs have not therefore established their
title to the property. They have not also proved
their possession in the suit property on the date of
the suit. The order passed by the Sarfekhas
Authorities are invalid and do not bind the
Corporation in any manner. It is true that the
corporation has proved effectively possession of
the property only from the year 1946 but they have
established their title to the property. The
plaintiffs who have no title to the property cannot
get any injunction against the Corporation who is
the real owner of the property even if it were to be
assumed that the plaintiffs were in possession of
the property on the date of the suit. The acts of
possession indulged in by the plaintiffs are
17
fugitive in character and do not establish their
possession in any manner."
17. The learned trial judge in its judgment and order dated 24.4.1998 in
O.S. No. 573 of 1991 referred to in extenso the earlier judgment of the High
Court to arrive at the following finding:
"After discussing the various aspects it was held
that in 1915 Dhan Singh did not make other claim
except in respect of 1250 sq. yds. relating to the
lands bearing Nos.5943 and 5944 in respect of
compensation. This will probablise that if really
he was owning any greater extent of property, he
could have claimed compensation for the larger
extent of property as well. The absence of the
such a claim is a strong probability that he was not
owning any lands in excess of 1250 sq. yds. for
which compensation was provided and paid to
him. Though Dhan Singh made a claim for some
plot bearing No.5945/D adjacent to the slaughter
house; he made an admission that the said plot was
also within the prohibited area. It was further held
that the fact remains even if Dhan Singh had any
title to the plot bearing No.5945/D it became
extent (sic) when it was acquired by City
Improvement Board in about the year 1920. Dhan
Singh made claim stating that the extent involved
in his property Nos.5943 and 5944 was 2750 sq.
yds. and not 1250 sq.yds. and that the
compensation court was not correct in deducting
the amounts towards nuzul."
18
It furthermore held that the property covered by Exh. A-8 was only
1250 square yards and nothing more and the claim of the plaintiffs in the
said suits with regard to 5410 square yards appeared to be highly
improbable. It was furthermore stated:
"If Dhan Singh who was claiming under Ex.A8
previously only 2750 sq.yds. in property Nos.5943
and 5944 as against 1250 sq.yds. fixed by the
compensation court and when the claim of 2750
sq. yards was disallowed confining his right to
1250 sq. yds. was acquired by City Improvement
Board and compensation was paid to Devi Singh,
the father of the plaintiff's is not in dispute."
The learned trial court furthermore considered the evidence of the
plaintiff who examined himself as PW.2 stating:
"According to him suit property is 5410 sq. yds.
out of which the black colour area admeasures
2790 sq. yards which is in his possession and the
green colour portion was forcibly occupied by the
Municipality. The red colour portion also belongs
to him. He admitted about previous litigation and
the decree passed in O.S. 7/59 and the same being
set aside under Ex.B-1 by the High Court.
According to him Nizam Government took away
his property from his ancestrals somewhere in
1940's subsequently the property was released. It
is pertinent to mention that he did not file any
documents."
19
18. Noticing that neither the original plaintiff nor the respondents who
were substituted in place of Devi Singh had not amended the plaint in the
previous suit, it was held that the evidence on either side is very meagre in
the said suit. The said suit was held to be barred under Order II Rule 2
stating that the plaintiff ought to have prayed for the declaration in the
previous suit itself.
19. A distinction must be borne in mind between diverse powers of the
appellate court to pass an order of remand. The scope of remand in terms of
Order XLI Rule 23 is extremely limited. The suit was not decided on a
preliminary issue. Order XLI Rule 23 was therefore not available. On what
basis, the secondary evidence was allowed to be led is not clear. The High
Court did not set aside the orders refusing to adduce secondary evidence.
20. Order XLI rule 23A of the Code of Civil Procedure is also not
attracted. The High Court had not arrived at a finding that a re-trial was
necessary. The High Court again has not arrived at a finding that the decree
is liable to be reversed. No case has been made out for invoking the
jurisdiction of the Court under Order XLI Rule 23 of the Code.
20
An order of remand cannot be passed on ipse dixit of the court. The
provisions of Order II Rule 2 of the Code of Civil Procedure as also Section
11 thereof could be invoked, provided of course the conditions precedent
therefor were satisfied. We may not have to deal with the legal position
obtaining in this behalf as the question has recently been dealt with by this
Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas &
anr.(Civil Appeal No. 3495 of 2008) disposed of on 12.5.2008.
21. We are, therefore, of the opinion that the impugned judgment cannot
be sustained. It is set aside accordingly and the matter is remanded back to
the High Court for consideration of the appeal on merits. The appeal is
allowed with the aforesaid directions.
In the facts and circumstances of the case, however, there shall be no
order as to costs.
