# Kanthuram v. Jagdev Prasad & Anr

- **Citation:** (2019) 4 ILRA 975
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** FAFO No. 931 of 2014
- **Bench:** Ved Prakash Vaish
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanthuram-v-jagdev-prasad-anr-44972
- **Pages:** 6

## 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, the appellate
Court may itself determine the case
finally.

Held - In the present case, the appellant filed
a suit for permanent injunction restraining the
respondents/ defendants from interfering in
his peaceful possession - respondents filed
written statement, issues were framed and
both the parties adduced their respective
evidence - Not a case where the trial court has
disposed of the suit on the preliminary issues
without recording evidence and giving its
decision on the rest of the issues - The
Appellate Court could have decided the appeal
on the basis of the material on record. (Para
22 & 23)

First Appeal from Order allowed. (E-5)

List of cases cited: -

## Text

4 All. Kanthuram Vs. Jagdev Prasad & Anr.
975
(now deceased), during pendency of the
said application she died, the appellant
moved an application for substitution as
her legal representative/legal heir. The
Tribunal while considering the application
for substitution took into consideration
whether Smt. Saroj Yadav (original
claimant) died due to injuries sustained by
her in the alleged untoward incident or
her death was a natural death. In my view,
the same was not warranted at that stage.
In my considered view, the appellantSuneel Kumar is entitled to be substituted
as legal heir of the deceased claimant.

28. In the result, the appeal is
allowed and the impugned order dated
19th January, 2016 passed by the
Railways Claims Tribunal, Lucknow
Bench, Lucknow is set aside and the
application for substitution of legal heir of
the deceased applicant, Smt. Saroj Yadav
is allowed. The Railway Claims Tribunal
is directed to decide the claim application
expeditiously, in accordance with law.

29. Lower court record along with a
copy of this judgment be sent back to the
Tribunal forthwith.
----------
(2019)12 ILR A975

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.

FAFO No. 931 of 2014

Kanthuram ...Appellant
Versus
Jagdev Prasad & Anr. ...Respondents

Counsel for the Appellant:
Vaibhav Srivastava
Counsel for the Respondents:
Subhash Chandra Pandey

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, the appellate
Court may itself determine the case
finally.

Held - In the present case, the appellant filed
a suit for permanent injunction restraining the
respondents/ defendants from interfering in
his peaceful possession - respondents filed
written statement, issues were framed and
both the parties adduced their respective
evidence - Not a case where the trial court has
disposed of the suit on the preliminary issues
without recording evidence and giving its
decision on the rest of the issues - The
Appellate Court could have decided the appeal
on the basis of the material on record. (Para
22 & 23)

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 Vs Pratap
Steels Ltd (2002) 2 SCC 686

(Delivered by Hon'ble Ved Prakash
Vaish,J.)

1. Heard Sri Ashish Kumar, learned
counsel for the appellant and Sri Subhash
976 INDIAN LAW REPORTS ALLAHABAD SERIES
Chandra Pandey, learned counsel for the
respondents.

2. The appellant impugns judgment
and decree dated 28th August, 2014
passed by learned Additional District
Judge, Sitapur, in Civil Appeal No.15 of
2013 (Jagdev Prasad and
Anr. v.
Kanthuram) by filing appeal under Order
43 Rule 1 (u) of the Code of Civil
Procedure, 1908.

3. The brief facts of the case are that
the appellant/ plaintiff filed a suit for
permanent
injunction
restraining
the
respondents/ defendants from interfering
in peaceful possession of the appellant
and from interfering in the construction
work in the suit premises. The case of the
appellant/ plaintiff is that his house is
situated in mohalla Bahadurpur, pargana
Bari, tehsil Sidhauli, district Sitapur, the
plaintiff used to tie animals in the Haata;
the house of the plaintiff was demolished
during rains and he wanted to construct
Pakka house; in the village panchayat
Sidhauli, house of the plaintiff is recorded
as house no.90. Defendant no.2 tried to
demolish the same; the plaintiff moved an
application dated 25th August, 2008 to
Sub-Divisional Magistrate, Sidhauli but
the defendants are interfering in his
peaceful possession. Hence, the plaintiff
filed the suit for permanent injunction.

4. The suit was contested by the
defendants/ respondents by filing written
statements. The defendants denied the
allegations made during the plaint; it is
stated that the defendants inherited the
said disputed land from their forefathers.
The disputed land is the way to exit of
defendants and the plaintiff is trying to
take forcible possession, defendants have
informed about the dispute to the SubDivisional Magistrate on 24.10.2008 and
27.10.2008, defendants have got a plan
sanctioned to construct the house.

5. On 08th March, 2011, following
issues were framed by the Trial Court:

1- D;k oknh fookfnr vgkrk of.kZr
/kkjk&2 okni= dk ekfyd dkfct gS\

2- D;k oknh okafNr vuqrks"k ikus dk
vf/kdkjh gS\

6. In support of his case, the
appellant/ plaintiff examined Smt. Shanti
Devi (P.W.1), Kallu (P.W. 2) and Rajju
(P.W. 3). The defendants examined Sri
Jagdev Prasad (D.W.1), Kamlesh (D.W.2)
and Babu Ram (D.W.3).

7. Vide order and decree dated 13th
February, 2013, the suit was decreed by
the learned Additional Civil Judge, Senior
Division, Sitapur.

8. Against the said order of decree
dated
13th
February,
2013,
the
respondents/
defendants
filed
Civil
Appeal No.15 of 2013. Vide impugned
judgment and decree dated 28th August,
2014, the appeal was allowed and the
matter was remanded back to the Trial
Court for passing a fresh order.

9. Being aggrieved by the said
judgment and decree, the appellant/
plaintiff has filed the present appeal.

10. Learned counsel for the
appellant urges that it was not disputed
that the disputed property and plot no.90
are the same property, the appellate court
failed to appreciate the tax receipts filed
by the appellant. He also submits that the
documents filed by the appellant/ plaintiff
4 All. Kanthuram Vs. Jagdev Prasad & Anr.
977
were also on record and sufficient
opportunity was given by the trial court to
the respondents to rebut the same but the
respondents/ defendants did not rebut the
said documents.

11. Learned counsel for the
appellant also submits that the impugned
judgment and decree is against the
provisions of Order XLI Rule 23 and 23A of the Code of Civil Procedure, 1908.
The appellate court could have decided
the matter on the basis of pleadings,
documents on record and the evidence
adduced by both the parties.

12. On the other hand, learned
counsel for the respondents/ defendants
contends that the appellant had filed some
documents at the time of final arguments
and no opportunity was given to the
respondents to rebut the said documents;
in these circumstances, the First Appellate
Court rightly remanded the matter for
passing a fresh order after affording
opportunity to rebut the said documents.

13. I have carefully considered the
submissions made by learned counsel for
both the parties and I have also gone
through the materials available on record.

14. 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."

15. 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
C.P.C. provides that where the Courts
from whose decree an appeal is preferred
has disposed of the case otherwise than on
978 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

16. 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
appellate 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 appellate court to deal
with all the issues and the evidence led by
the parties before recording the finding
regarding ownership and possession.

17. 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."

18. 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.

19. 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. The appellate Court has
jurisdiction to reverse or affirm the
findings of the trial court. The first appeal
4 All. Kanthuram Vs. Jagdev Prasad & Anr.
979
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."

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

21. 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
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
980 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

22. 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.

23. In the present case, the appellant
filed a suit for permanent injunction
restraining the respondents/ defendants
from
interfering
in
his
peaceful
possession, the respondents filed written
statement, issues were framed and both
the parties adduced their respective
evidence. It is not a case where the trial
court has disposed of the suit on the
preliminary issues without recording
evidence and giving its decision on the
rest of the issues. The Appellate Court
could have decided the appeal on the
basis of the material on record.

24. In the result, the appeal is
allowed, the impugned judgment and
decree dated 28th August, 2014 passed by
learned Additional District Judge, Sitapur
in Civil Appeal No.15 of 2013 are set
aside and the matter is remanded back to
the 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 three months.

25. Both the parties are directed to
appear before the learned District Judge,
Sitapur on 20th January, 2020 who will
hear the appeal himself or assign to some
other competent court for deciding the
same according to law.

26. Lower court record along with a
copy of this judgment be sent to the
Appellate Court immediately.
----------

(2019)12 ILR A980

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.