# Ram Swaroop Singh v. State of U.P. and another

- **Citation:** (2011) 2 ILRA 916
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-11
- **Case number:** Civil Misc. Writ Petition No. 12756 of 1993
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-swaroop-singh-v-state-of-u-p-and-another-42011
- **Pages:** 4

## Headnote

Civil Procedure Code Order 41 Rule 23Remand-order
when
entire
material
available before the appellate authorityitself should decide the matter on merit
instead of remanding before Prescribed
authority-unnecessary remand-order not
sustainable.

Held: Para 5

Before holding an order or part of order
to be incorrect it is incumbent upon the
appellate
authority
to
discuss
and
demonstrate as to how it found the order
in appeal incorrect or vitiated on one or
other ground. The mere observation that
finding recorded by court below is
incorrect makes the order unreasoned
and non speaking and such an order
cannot sustain. An order of reman ought
not to have been passed in routine
course but the appellate court must
consider
the
matter
with
more
seriousness and unless and until it finds
that order of court below cannot be
sustained at all then after demonstrating
and discussing the matter it ought to
have passed an order. When the entire
material on record is available the
appellate
court
ought not
to
have
remanded the matter but should have
decided on its own. An order of remand
normally passed when something not
evident from record has to be seen.
Case law discussed:
1993 UPTC-407; 1995 UPTC-1035; AIR 1999
SC 1125; AIR 2004 SC 1239; 2006(8) ADJ 586

## Text

916 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 12756 of 1993

Ram Swaroop Singh

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petition:
Sri Anil Sharma

Counsel for the Respondents:
S.C.

Civil Procedure Code Order 41 Rule 23Remand-order
when
entire
material
available before the appellate authorityitself should decide the matter on merit
instead of remanding before Prescribed
authority-unnecessary remand-order not
sustainable.

Held: Para 5

Before holding an order or part of order
to be incorrect it is incumbent upon the
appellate
authority
to
discuss
and
demonstrate as to how it found the order
in appeal incorrect or vitiated on one or
other ground. The mere observation that
finding recorded by court below is
incorrect makes the order unreasoned
and non speaking and such an order
cannot sustain. An order of reman ought
not to have been passed in routine
course but the appellate court must
consider
the
matter
with
more
seriousness and unless and until it finds
that order of court below cannot be
sustained at all then after demonstrating
and discussing the matter it ought to
have passed an order. When the entire
material on record is available the
appellate
court
ought not
to
have
remanded the matter but should have
decided on its own. An order of remand
normally passed when something not
evident from record has to be seen.
Case law discussed:
1993 UPTC-407; 1995 UPTC-1035; AIR 1999
SC 1125; AIR 2004 SC 1239; 2006(8) ADJ 586

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Shri Anil Sharma, learned
counsel for petitioner and the Standing
Counsel for the respondents.

2. It is contended that the land
purchased by major son of the petitioner
from his own resources could not have
been included in the land of the petitioner.
When he received the notice under
Section 10(2) read with Section 29 of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1973, he raised his
objection
whereupon
the
Prescribed
Authority recorded a finding while
considering Issue Nos. 5 & 6, that the
land purchased by Pritam Singh, son of
the petitioner from his own resources
cannot be included in the holdings of Ram
Swaroop Singh and the issues were
decided in favour of the petitioner.

3. Learned Commissioner in appeal
held the findings recorded by Prescribed
Authority on Issues 5 & 6 incorrect and
that court below has not taken decision on
merits on the said issue and on this
ground he remanded back the matter to
the court below to decide afresh on merits
after hearing both the parties. However
while holding the findings it has not
shown how the findings are incorrect.

4. After hearing the learned counsel
for the parties and perusing the record, I
find force in the contention of the learned
counsel for petitioner. The appellate
authority has committed illegality in
setting aside the judgement and order of
2 All] Ram Swaroop Singh V. State of U.P. and another

917
the Prescribed Authority without referring
to any incorrectness in the findings in
respect of Issues 5 & 6.

5. Before holding an order or part of
order to be incorrect it is incumbent upon
the appellate authority to discuss and
demonstrate as to how it found the order
in appeal incorrect or vitiated on one or
other ground. The mere observation that
finding recorded by court below is
incorrect makes the order unreasoned and
non speaking and such an order cannot
sustain. An order of reman ought not to
have been passed in routine course but the
appellate court must consider the matter
with more seriousness and unless and
until it finds that order of court below
cannot be sustained at all then after
demonstrating and discussing the matter it
ought to have passed an order. When the
entire material on record is available the
appellate court ought not to have
remanded the matter but should have
decided on its own. An order of remand
normally passed when something not
evident from record has to be seen.

6. This Court in M/s Nehru Steel
Rolling
Mills,
Muzaffarnagar
Vs.
Commissioner of Sales Tax, 1993 UPTC407 (Hon'ble M. Katju, J. as His Lordship
then
was)
while
considering
the
correctness of an order passed by the
Sales Tax Tribunal remanding the matter
to Deputy Commissioner observed as
under :

"In my opinion a remand order
should not be readily made, and it should
only be made when for very strong
reasons the authority cannot itself dispose
of the matter on merits. It seems that these
remand orders were made by the
authorities merely to get rid of the case so
that the authority could avoid going into
the matter deeply and deciding the issue
once and for all. This kind of attitude is to
be deprecated."

7. Again in M/s Abid Hasan Watch
Company, Varanasi Vs. Commissioner
of Sales Tax, 1995 UPTC-1035, this
Court observed in paras 8, 9 and 10 as
under :

"(8) The procedural law regarding
remand may be stated. It is this that
Appeal Court may remand a case if it has
been decided on a preliminary point and
said judgment of lower court is set aside
in appeal by the Appeal Court. It may
again send the case to lower court with
directions in case it is necessary in the
interest of justice. Another contingency is
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 can remand the case to
decide specific issue or issues. The
Appellate Court may also frame issue or
issues for determination after remand. In
such a case additional evidence may also
be directed to be taken. Otherwise the
evidence already on record will again be
read.

(9) If, however, the evidence on
record is sufficient to enable to Appellate
Court
to
pronounce
judgment,
the
Appellate Court may after resettling the
issues, if necessary, finally determine the
suit.

(10) I would now deal with a few
situations where remand or a prayer for it
should be frowned upon. It is in
exceptional cases that remand may be
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ordered, like when there has been no real
trial. Mere insufficiency of evidence is no
ground for allowing a party to adduce
further evidence on remand. If there is
insufficiency of evidence for any party to
prove his case, he will suffer. Remand
with a view to enable a party to fill up
lacuna in evidence is not permissible. In
protracted litigation the remand should
not be resorted to on the ground that final
curtain should be drawn."

8. The question has also been
considered by the Apex Court in a catena
of cases and it will be useful to refer some
recent judgments. In Ashwinkumar K.
Patel Vs. Upendra J. Patel and others,
AIR 1999 SC 1125, the Apex Court held
that even the High Court should not
remand a case under Order 41 Rule 23
C.P.C. to lower Court merely if some
reasoning of the lower Court is wrong,
since it leads to unnecessary delay and
cause prejudice to the parties. If the
material is available, the High Court
should decide the matter itself since it can
consider all the aspects. The relevant
observations as contained in para-7 is
reproduced as under :

"In out view, the High Court should
not ordinarily remand a case under Order
41, Rule 23, C.P.C. to the lower Court
merely because it considered that the
reasoning of the lower Court in some
respects was wrong. Such remand orders
lead to unnecessary delays and cause
prejudice to the parties to the case. When
the material was available before the
High Court, it should have itself decided
the appeal one way or other. It could have
considered the various aspects of the case
mentioned in the order of the trial Court
and considered whether the order of the
trial Court ought to be confirmed or
reversed or modified."

9. Recently, in Pushpa Devi and
another Vs. Binod Kumar Gupta and
another, AIR 2004 SC 1239 it was held if
the entire material is available and the
parties have raised all issues before the
Appellate Court, it should not remand the
matter but decide on its own.

10. In M/s S.P. Builders and others
Vs. Chairman, Debt Recovery Appellate
Tribunal Allahabad and others, 2006(8)
ADJ 586 this Court while considering
when an order of remand can be passed,
has said:

". . . . . the Appellate Tribunal is not
a body of limited jurisdiction. It exercise
power co-extensive with the Tribunal
itself. In these circumstances, if there was
no want of any relevant material, if the
Tribunal has not discussed some issues
properly, it was open to the Appellate
Tribunal to consider itself all such issues
and to decide the matter but, that, by
itself, cannot be a reason to remand the
matter to the Tribunal."

11. In view of above exposition of
law and discussion with respect to order
impugned in this writ petition, in my
view, the impugned order cannot sustain.

12. Accordingly, the writ petition is
allowed. The order dated 17.2.1993
passed by appellate authority is hereby
quashed. The matter is remanded to the
Commissioner
for
considering
and
passing fresh order in accordance with
law.
---------
2 All] Jagdish Pandey V. Addl. Collector(City) and others

919
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2011

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 17743 of 1997

Jagdish Pandey

 ...Petitioner
Versus
Addl. Collector(City) and others

 ...Respondents

Counsel for the Petitioner:
Sri Salil Kumar Rai

Counsel for the Respondents:
Sri R.K. Chaubey
Sri M.N. Singh
Sri V.K. Singh
C.S.C.

Gaon Sabha Manual Para 131-Memo of
Appeal-presented by D.G.C. (Revenue)-
signed by private person-disclosing only
reason the village Pradhan refused to signheld-illegal-a private person can not be be
substitute of the secretary of Gaon SabhaD.G.C.
Failed
to
discharge
his
duty
properly-provision
of
Para
131
are
mandatory can not be by passed in any
manner.

Held: Para 13

The provisions of Para 131 appear to be
binding and peremptory in nature. The
procedure therein cannot be bypassed or
else it would lead to a chaos. If any person
or villager is allowed to sign documents
the same would be not only inappropriate
but also illegal as such a person will have
no authority to represent a Gaon Sabha.
The said provision cannot be wished off
merely as directory in view of he language
employed therein.
Case law discussed:
1981 RD 1; 1996 AWC 1035; 2007 (2) ALJ
175; 1980 AWC 243; 1983 RD 75; 1976 RD
400; 1965 RD 349
(Delivered by Hon'ble A.P. Sahi,J. )

1. Heard Sri S.K. Rai, learned
counsel for the petitioner, Sri R.K.
Chaubey,
learned
counsel
for
the
respondent no.4. The respondent nos. 5
and 6 are collateral of the petitioner, who
have not put any contest. Sri M.N. Singh,
learned counsel has ably assisted the
Court on behalf of respondent no.3.
Learned Standing counsel appears for the
respondent nos. 1 and 2.

2. The challenge in this petition is to
the order dated 14th March, 1997, passed
by the Additional Collector, Gorakhpur,
in a revision filed by the Gaon Sabha,
respondent no.3 holding, that the memo of
revision as presented was competent, and
that the revision could be entertained even
it was signed by a private person, namely,
respondent no.4. The Revising Authority
relied on the decision in the case of Gaon
Sabha V. Ram Karan Singh reported in
1981 RD 1 to support the said legal
proposition inferred by him.

3. Sri S.K. Rai, learned counsel for
the petitioner submits that the inference so
drawn by the learned Additional Collector
is erroneous in law without considering
the provisions of Paragrah-131 of the
Gaon Sabha Manual as contained in
Chapter-6 thereof, and that a private
person had no authority under law to sign
the memo of revision and get it presented
through the District Government Counsel.
He contends that it has been time and
again held by this Court that the
procedure prescribed in law has to be
followed and that it should have been
done in that manner alone for which
reliance is placed on a Division Bench
Judgement in the case of Babu Ram
Verma V. Sub Divisional Officer and