# Awdhesh Kumar v. Rajendra Kumar

- **Citation:** (2019) 4 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** FAFO No. 802 of 2018
- **Bench:** Ved Prakash Vaish
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awdhesh-kumar-v-rajendra-kumar-45011
- **Pages:** 7

## Headnote

Civil Law - Code of Civil Procedure -
Section 107 read with Order 41 Rule 24 -
Remand - First appellate court has power
to remand if the trial court has disposed of
a suit on a preliminary issue without
recording evidence but where evidence on
record is sufficient, Appellate court may
itself determine the case finally.

Held - In the instant case, the respondent/
plaintiff filed a suit for cancellation of sale
deed, written statement was filed by the
appellant/defendant, issues were framed and
the evidence was adduced by both the parties.
It is not a case where the trial court has
disposed of the suit on a preliminary issue
without recording evidence and giving its
decision on the rest of the issues. The first
appellate court could have decided the matter
on the basis of the evidence on record (Para
21 & 22)

First Appeal from Order allowed. (E-5)

List of cases cited: -

## Text

528 INDIAN LAW REPORTS ALLAHABAD SERIES
nature of inquiry in which a very few
thing is required to be established. The
Court observed:

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions
to be made for arriving at the income; (ii)
the deduction to be made towards the
personal living expenses of the deceased;
and (iii) the multiplier to be applied with
reference of the age of the deceased."

17. From the perusal of the
impugned judgment, it is clear that the
learned Tribunal has considered all the
aspects as laid down by Sarla Verma
(supra) and has given finding based on
the evidence on record. I do not find any
perversity
or any illegality in the
impugned judgment.

18. In view of the above discussions,
I find no force in this appeal and the
appeal is liable to be dismissed.

18. The appeal is dismissed.

19. The office is directed to send a
copy of this judgment to the Court
concerned for information and necessary
compliance.
----------
(2019)12 ILR A528

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
FAFO No. 802 of 2018

Awdhesh Kumar ...Appellant
Versus
Rajendra Kumar ...Respondent

Counsel for the Appellant:
Sri Adnan Ahmad

Counsel for the Respondent:
Sri Alok Srivastava

Civil Law - Code of Civil Procedure -
Section 107 read with Order 41 Rule 24 -
Remand - First appellate court has power
to remand if the trial court has disposed of
a suit on a preliminary issue without
recording evidence but where evidence on
record is sufficient, Appellate court may
itself determine the case finally.

Held - In the instant case, the respondent/
plaintiff filed a suit for cancellation of sale
deed, written statement was filed by the
appellant/defendant, issues were framed and
the evidence was adduced by both the parties.
It is not a case where the trial court has
disposed of the suit on a preliminary issue
without recording evidence and giving its
decision on the rest of the issues. The first
appellate court could have decided the matter
on the basis of the evidence on record (Para
21 & 22)

First Appeal from Order allowed. (E-5)

List of cases cited: -

1. Santosh Hazari Vs Purushottam Tiwari
(Deceased) by LRs (2001) 3 SCC 179

2. Madhukar & Others Vs Sangram & Others
(2001) 4 SCC 756

3.
B.V.
Nagesh
and
another Vs
H.V.
Sreenivasa Murthy (2010) 13 SCC 530

4. State Bank of India & Anr Vs Emmsons
International Ltd.& Anr (2011) 12 SCC 174

5. P. Purushottam Reddy And Anr. v Pratap
Steels
Ltd
(2002)
2
SCC
686
4 All. Awadhesh Kumar Vs. Rajendra Kumar
529
(Delivered by Hon'ble Ved Prakash
Vaish, J.)

1. Heard Sri Adnan Ahmad, learned
counsel for the appellant and Sri Alok
Srivastava, learned counsel for the
respondent.

2. This is an appeal under Order 43
Rule 1 (u) of the Code of Civil Procedure,
1908 (hereinafter referred to as "C.P.C.")
against the judgment and order dated 05th
October, 2018 passed by learned Sixth
Additional District Judge, Unnao, in Civil
Appeal No.02 of 2016, whereby the
appeal filed by the respondent was
allowed.

3. Succinctly stating the facts of the
present case as borne out from the record
are that the respondent herein (plaintiff)
filed a suit for cancellation of sale deed,
which was registered on 22nd November,
2007, in respect of plot No.210, admeasuring one bigha six biswa situated at
Village Newlapur, Pargana Bangarmau,
Tehsil Safipur, District Unnao bearing
Civil Case R.S. No.76 of 2008. In the
plaint, it was stated by plaintiff that he
was owner of the half portion of plot
No.208, ad-measuring 0.658 hec. situated
at Village Newlapur, Pargana Bangarmau,
Tehsil Safipur, District Unnao and the
other half portion of the said plot was
owned by his mother, namely, Smt.
Somwati; the plaintiff sold the half
portion of said plot No.208 to the
defendant and executed a registered sale
deed on 05.03.2004 for a consideration of
Rs.80,000/-
(rupees
eighty
thousand
only), which was duly registered in the
office of Sub-Registrar, Safipur, District
Unnao; after execution of the said sale
deed, in the month of July, 2007, the
defendant stated that in the sale deed
05.03.2004, the boundaries of plot No.208
have been wrongly recorded and it needs
to be corrected; the plaintiff agreed to the
same, the defendant prepared a document
to get the boundaries corrected and after
one month, the defendant (appellant) told
to the plaintiff that he should return the
consideration amount of Rs.80,000/- and
he is unwilling to buy the said plot
No.208; the plaintiff was ready to return
the consideration amount and proposed to
the defendant that he would have to
execute back the sale deed which he had
executed in favour of the defendant; the
defendant refused to bear the expenses of
the stamp duty and registration fee; later
on, when some people intervened, it was
agreed that the defendant would execute a
sale deed and the plaintiff would return
the consideration amount of Rs.80,000/-
and bear all other expenses of stamp duty
and registration fee. Both the parties went
to the office of Sub-Registrar, Safipur,
District Unnao on 22.11.2007, since
everything was decided and the sale deed
was to be executed, the plaintiff returned
the consideration amount of Rs.80,000/-
to the defendant, in the presence of the
witnesses, for the said half portion of plot
No.208 ad-measuring 0.658 hec.; the
plaintiff signed the document and put his
thumb impression. It was alleged that the
plaintiff put the thumb impression and
signatures under the impression that the
sale deed was being executed as per
settlement; for execution of sale deed both
the parties went to the office of SubRegistrar, thumb impression of the
plaintiff was taken and registration fee
was paid by the plaintiff, the defendant
went away from the office of SubRegistrar on the excuse that he was going
to toilet, the plaintiff waited for the
defendant but the defendant did not turn
up, the plaintiff got the information at the
530 INDIAN LAW REPORTS ALLAHABAD SERIES
end of day that defendant got executed a
sale deed fraudulently. It was also alleged
that the defendant succeeded in getting
the sale deed in respect of plot No.210 admeasuring two bigha four biswa out of
total area of 2.056 hec. situated at Village
Newlapur, Pargana Bangarmau, Tehsil
Safipur,
District
Unnao
instead
of
executing back the sale deed in respect of
plot No.208. It was also alleged that the
plaintiff did not receive the consideration
in respect of plot No.210; plot No.210
was a valuable piece of land situated at
Lucknow Bangurmau Road and value of
the
plot
No.210
is
approximately
Rs.4,00,000/- (rupees four lacs) per bigha;
the sale deed was got executed in respect
of plot No.210 without payment of
consideration and by playing fraud on the
plaintiff. Hence, the respondent/plaintiff
filed a suit for cancellation of sale deed in
respect of plot No.210 ad-measuring as
one bigha six biswa registered on
22.11.2007 with the office of SubRegistrar, Safipur, District-Unnao.

4. The suit was contested by the
appellant/respondent by filing written
statement; it was stated that the plaintiff is
owner of both the plots No.209 and 210
and the plaintiff agreed to sell half portion
of plot No.209 for a consideration of
Rs.80,000/-. It was further stated that the
sale deed was executed on 05.03.2004,
when the defendants started raising
boundaries on the spot, the plaintiff
objected to the same and at that time the
defendant came to know that the land
which was purchased by him was plot
No.210 which was shown as plot No.209
in the sale deed and he was cheated by the
plaintiff. Thus, it is stated by the appellant
in the written statement that the plaintiff
concealed the said fact with an ill motive
to defraud him.

5. On the pleadings of parties,
following
issues
were
framed
on
11.11.2019:-

"1. Whether the plaintiff is
entitled to get the sale deed dated
22.11.2007 canceled on the basis of his
pleadings mentioned in the plaint?

2.
Whether
the
suit
is
undervalued for the purpose of court fees
and jurisdiction?

3. Is the suit barred by the
provisions of Sec.331 of the ULZALR
Act?

4. Which relief is the plaintiff
entitled to obtain?"

6. In support of his case, the
respondent/plaintiff
filed
some
documents.
After
considering
the
pleadings and material on record, the suit
of the plaintiff was dismissed by learned
Additional Civil Judge (J.D.), Unnao vide
judgment and decree dated 28th January,
2016.

7. Against the said judgment and
decree, the respondent filed Civil Appeal
No.02 of 2016. Vide impugned judgment
and decree dated 05th October, 2018,
learned Additional District Judge, Unnao
allowed the appeal, set aside the judgment
and decree dated 28th January, 2016
passed by learned Additional Civil Judge
(J.D.), Unnao and the matter was
remanded back for passing a fresh order
after considering the pleas of the parties.

8. Being aggrieved by the said
judgment and decree dated 05th October,
2018, the appellant has filed the present
appeal.

9. Learned counsel for the appellant
submitted that after order of remand
4 All. Awadhesh Kumar Vs. Rajendra Kumar
531
neither fresh evidence is to be recorded
nor fresh issues are to be framed. The first
appellate court could have decided the
matter after considering the pleadings of
the parties, documents on record and
evidence adduced by the parties and there
was no occasion for remanding the matter
without giving any findings on merits.

10. Learned counsel for the
appellant further submitted that the
respondent/plaintiff has filed a Civil Suit
No.116 of 2008 wherein it was stated that
the boundaries have not been correctly
mentioned
in the sale deed
dated
05.03.2004.

11. Per contra, learned counsel for
the respondent urged that the plaintiff has
not played any fraud and the sale deed
was
executed
after
payment
of
consideration.
According
to
learned
counsel for the respondent, the first
appellate
court
has
committed
no
illegality while remanding the matter for
passing a fresh order on the basis of
material on record.

12. I have given my thoughtful
consideration to the submissions made by
learned counsel for both the parties. I
have also gone through the material
available on record.

13. Before adverting the facts of the
present case, it is necessary to consider
the provisions of Rule 23 and 24 of Order
XLI of C.P.C. Rule 23 and 24 of Order
XLI of C.P.C. read as under:-

"23. 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 trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

23-A. Remand in other cases.-
Where the Court from whose decree an
appeal is preferred has disposed of the
case otherwise than on a preliminary
point, and the decree is reversed in
appeal and a retrial is considered
necessary, the Appellate Court shall have
the same powers as it has under Rule 23.

24. Where evidence on record
sufficient,
Appellate
Court
may
determine case finally.- Where the
evidence upon the record is sufficient to
enable the Appellate Court to pronounce
judgment, the Appellate Court may, after
resettling the issues, if necessary, finally
determine the suit, notwithstanding that
the judgment of the Court from whose
decree the appeal is preferred has
proceeded wholly upon some ground
other than that on which the Appellate
Court proceeds."

14. On perusal of provisions of Rule
23 Order XLI of C.P.C. it is clear that
where the Court has disposed of the suit
on 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. Rule 23A of Order XLI of
532 INDIAN LAW REPORTS ALLAHABAD SERIES
C.P.C. provides that where the Courts
from whose decree an appeal is preferred
has disposed of the case otherwise than on
a preliminary point, and the decree is
reversed in appeal and a retrial is
considered necessary, the appellate court
shall have the same powers as it has under
Rule 23. Rule 24 of Order XLI of C.P.C.
provides that where the evidence on
record is sufficient, appellate court may
determine
case
finally,
instead
of
remanding the same to the lower court.

15. It is settled principle of law that
the powers under Section 96 of C.P.C. are
wide. The first appeal has to be decided
on facts as well as on law. In the first
appeal parties have the right to be heard
both on questions of law as also on facts
and the first appellate court is required to
address itself to all issues and decide the
case by giving reasons. Unfortunately, the
High Court, in the present case has not
recorded any finding either on facts or on
law. Sitting as the first appellate court it
was the duty of the High Court to deal
with all the issues and the evidence led by
the parties before recording the finding
regarding title.

16. The scope and ambit of the first
appellate court under Section 96 of C.P.C.
have been considered in 'Santosh Hazari
vs. Purushottam Tiwari (Deceased) by
LRs.', (2001) 3 SCC 179, in the said case
the Hon'ble Supreme Court held (at pages
188-189) as under:-

"The
appellate
court
has
jurisdiction to reverse or affirm the
findings of the trial court. First appeal is
a valuable right of the parties and unless
restricted by law, the whole case is
therein open for rehearing both on
questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and
record findings supported by reasons, on
all the issues arising along with the
contentions put forth, and pressed by the
parties for decision of the appellate court.
... while reversing a finding of fact the
appellate court must come into close
quarters with the reasoning assigned by
the trial court and then assign its own
reasons for arriving at a different finding.
This would satisfy the court hearing a
further appeal that the first appellate
court had discharged the duty expected of
it."

17. In 'Madhukar & Others v.
Sangram & Others', (2001) 4 SCC 756,
the Hon'ble Supreme Court reiterated that
sitting as a court of first appeal, it is the
duty of the High Court to deal with all the
issues and the evidence led by the parties
before recording its findings.

18. Further, in the case of 'B.V.
Nagesh and another v. H.V. Sreenivasa
Murthy', (2010) 13 SCC 530, the Hon'ble
Supreme Court after taking note of all the
earlier judgments laid down following
principle with regard to Order XLI of
C.P.C. which is as follows:

"3. How the regular first appeal
is to be disposed of by the appellate
court/High Court has been considered by
this Court in various decisions. Order 41
of C.P.C. deals with appeals from
original decrees. Among the various
rules, Rule 31 mandates that the judgment
of the appellate court shall state: (a) the
points for determination; (b) the decision
thereon; (c) the reasons for the decision;
and (d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled.
4 All. Awadhesh Kumar Vs. Rajendra Kumar
533

4. The appellate Court has
jurisdiction to reverse or affirm the
findings of the trial court. The first appeal
is a valuable right of the parties and
unless restricted by law, the whole case is
therein open for rehearing both on
questions of fact and law. The judgment of
the appellate court must,... therefore,
reflect its conscious application of mind
and record findings supported by reasons,
on all the issues arising along with the
contentions putforth, and pressed by the
parties for decision of the appellate court.
Sitting as a court of first appeal, it was
the duty of the High Court to deal with all
the issues and the evidence led by the
parties before recording its findings. The
first appeal is a valuable right and the
parties have a right to be heard both on
questions of law and on facts and the
judgment in the first appeal must address
itself to all the issues of law and fact and
decide it by giving reasons in support of
the findings. (Vide Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179
at p.188, para 15 and Madhukar v.
Sangram, (2001) 4 SCC 756 at p.758,
para 5.)

 5. In view of the above
salutary principles, on going through the
impugned judgment, we feel that the High
Court has failed to discharge the
obligation placed on it as a first appellate
court. In our view, the judgment under
appeal is cryptic and none of the relevant
aspects have even been noticed. The
appeal
has
been
decided
in
an
unsatisfactory
manner.
Our
careful
perusal of the judgment in the regular
first appeal shows that it falls short of
considerations which are expected from
the court of first appeal. Accordingly,
without going into the merits of the claim
of both parties, we set aside the impugned
judgment and decree of the High Court
and remand the regular first appeal to the
High Court for its fresh disposal in
accordance with law."

19. In 'State Bank of India & Anr.
v. Emmsons International Ltd.& Anr.'
(2011) 12 SCC 174, the Hon'ble Supreme
Court reiterated the aforesaid principles.

20. Also, the Hon'ble Supreme
Court considered the provisions of Rule
23 of Order XLI of C.P.C. in 'P.
Purushottam Reddy And Anr. v Pratap
Steels Ltd', (2002) 2 SCC 686, it was
held:-

"11. In the case at hand, the
trial court did not dispose of the suit upon
a preliminary point. The suit was decided
by recording findings on all the issues. By
its appellate judgment under appeal
herein, the High Court has recorded its
finding on some of the issues, not
preliminary, and then framed three
additional issues leaving them to be tried
and decided by the trial court. It is not a
case where a retrial is considered
necessary. Neither Rule 23 nor Rule 23-A
of Order 41 applies. None of the
conditions contemplated by Rule 27 exists
so as to justify production of additional
evidence by either party under that Rule.
The validity of remand has to be tested by
reference to Rule 25. So far as the
objection as to maintainability of the suit
for failure of the plaint to satisfy the
requirement of Forms 47 and 48 of
Appendix A CPC is concerned, the High
Court has itself found that there was no
specific plea taken in the
written
statement. The question of framing an
issue did not, therefore, arise. However,
the plea was raised on behalf of the
defendants purely as a question of law
which, in their submission, strikes at the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
very root of the right of the plaintiff to
maintain the suit in the form in which it
was filed and so the plea was permitted to
be urged. So far as the plea as to
readiness and willingness by reference to
Clause (c) of Section 16 of the Specific
Relief Act, 1963 is concerned, the
pleadings are there as they were and the
question of improving upon the pleadings
does not arise inasmuch as neither any of
the parties made a prayer for amendment
in the pleadings nor has the High Court
allowed such a liberty. It is true that a
specific issue was not framed by the trial
court. Nevertheless, the parties and the
trial court were very much alive to the
issue whether Section 16(c) of the Specific
Relief Act was complied with or not and
the contentions advanced by the parties in
this regard were also adjudicated upon.
The High Court was to examine whether
such finding of the trial court was
sustainable or not-in law and on facts.
Even otherwise the question could have
been gone into by the High Court and a
finding could have been recorded on the
available material inasmuch as the High
Court being the court of first appeal, all
the questions of fact and law arising in
the case were open before it for
consideration and decision."

21. Undisputedly, Section 107 of the
C.P.C. empowers the appellate court to
remand a case but it also empowers the
appellate court to take additional evidence
or to require such evidence to be taken.
Rule 24 of Order XLI of the C.P.C.
provides that where evidence on record is
sufficient,
the
appellate
court
may
determine the case finally. It is settled
principle of law that the first appellate
court has power to remand the case if the
trial court has disposed of a suit on a
preliminary
issue
without
recording
evidence and giving its decision on the
rest of the issues.

22. In the instant case, the
respondent/ plaintiff filed a suit for
cancellation
of
sale
deed
dated
22.11.2007, written statement was filed
by the appellant/defendant, issues were
framed and the evidence was adduced by
both the parties. It is not a case where the
trial court has disposed of the suit on a
preliminary
issue
without
recording
evidence and giving its decision on the
rest of the issues. The first appellate court
could have decided the matter on the basis
of the evidence on record.

23. In view of the aforesaid discussion,
the appeal is allowed, impugned judgment
and decree dated 05th October, 2018 passed
by learned Additional District Judge, Unnao,
in Civil Appeal No.02 of 2016, are set aside
and the matter is remanded back to the first
appellate court to decide the appeal on merits
and pass a fresh order after hearing both the
parties, in accordance with law. The first
appellate court is directed to decide the
appeal expeditiously and preferably within a
period of three months.

24. Both the parties are directed to
appear before learned District Judge,
Unnao on 06.01.2020 who will hear the
appeal himself or assign the same to some
other competent court for deciding the
same according to law.

25. A copy of this judgment be sent
back
to
the
first
appellate
court
immediately.
----------
(2019)12 ILR A534

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2019