# Sanjay Kumar Modi & Anr v. Udairaj & Anr

- **Citation:** (2023) 5 ILRA 1081
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-29
- **Case number:** First Appeal from Order No. 158 of 2023
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-modi-anr-v-udairaj-anr-50082
- **Pages:** 7

## Headnote

A. Civil Law - Scope of remand - Code of
Civil Procedure: Order 41 Rule 23 - The
power of remand is not to be exercised
casually or it cannot be a ground to merely
shirk from the responsibility of deciding
the matter on merits since the powers of
the Lower Appellate Court u/s 96 C.P.C. is
wide and akin to that of the Trial Court
and in any case being the Court of first
appeal, it is legally obliged to consider
points of fact and law afresh. (Para 25)

B. Unless and until, there was any
handicap faced by the Appellate Court
which fell within the parameters of Order41 Rule 23- A, till then in absence of any
such cogent reason, the order of remand
is not justified. (Para 14)

In the present case, the Lower Appellate Court
has not exercised the powers of remand in its
correct perspective. The reasoning given by the
Lower
Appellate
Court
does
not
reflect
conscious application of judicial principles as
required to be applied before a remand order is
passed. (Para 22)
From the perusal of the impugned order, it
only reveals that the Lower Appellate
Court made reference to certain sections
such as Ss. 52 and 53 of the Transfer of
Property Act and Section 101 and 102 of
the Indian Evidence Act, however, what
the Lower Appellate Court has failed to
notice as to how the aforesaid sections
would
create
any
handicap
for
the
Appellate Court to have decided the
matter. The parties have led their entire
evidence and there is no reference made by the
Lower Appellate Court that on any particular
issue or on any particular aspect of the matter,
the parties have not been able to lead evidence
which was imperative which leads the Lower
Appellate Court to remand the matter. This is to
be kept in mind especially in context of the fact
that the Court cannot permit the parties to fill
up the lacunae in their case by passing an order
of remand. (Para 23)

If only the effect of the aforesaid legal
provisions (provisions of Sections 52 and 53 of
the Transfer of Property Act and Sections 102
and 103 of the Indian Evidence Act) were to be
seen, then the Lower Appellate Court being the
final court of fact and law was legally
empowered and obliged to have considered the
effect of the aforesaid sections on its own,
without remanding the matter. (Para 24)

Appeals allowed. (E-4)

Precedent followed:

## Text

5 All. Sanjay Kumar Modi & Anr. Vs. Udairaj & Anr.
1081

9. The writ petition is allowed.
----------
(2023) 5 ILRA 1081
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal from Order No. 158 of 2023
alongwith
First Appeal from Order No. 162 of 2023

Sanjay Kumar Modi & Anr. ...Appellants
Versus
Udairaj & Anr. ...Respondents

Counsel for the Appellants:
Satish Gulati, Sarvesh Kumar Tiwari, Sudeep
Kumar

Counsel for the Respondents:
Shyam Mohan Pradhan, Brijesh Kumar

A. Civil Law - Scope of remand - Code of
Civil Procedure: Order 41 Rule 23 - The
power of remand is not to be exercised
casually or it cannot be a ground to merely
shirk from the responsibility of deciding
the matter on merits since the powers of
the Lower Appellate Court u/s 96 C.P.C. is
wide and akin to that of the Trial Court
and in any case being the Court of first
appeal, it is legally obliged to consider
points of fact and law afresh. (Para 25)

B. Unless and until, there was any
handicap faced by the Appellate Court
which fell within the parameters of Order41 Rule 23- A, till then in absence of any
such cogent reason, the order of remand
is not justified. (Para 14)

In the present case, the Lower Appellate Court
has not exercised the powers of remand in its
correct perspective. The reasoning given by the
Lower
Appellate
Court
does
not
reflect
conscious application of judicial principles as
required to be applied before a remand order is
passed. (Para 22)
From the perusal of the impugned order, it
only reveals that the Lower Appellate
Court made reference to certain sections
such as Ss. 52 and 53 of the Transfer of
Property Act and Section 101 and 102 of
the Indian Evidence Act, however, what
the Lower Appellate Court has failed to
notice as to how the aforesaid sections
would
create
any
handicap
for
the
Appellate Court to have decided the
matter. The parties have led their entire
evidence and there is no reference made by the
Lower Appellate Court that on any particular
issue or on any particular aspect of the matter,
the parties have not been able to lead evidence
which was imperative which leads the Lower
Appellate Court to remand the matter. This is to
be kept in mind especially in context of the fact
that the Court cannot permit the parties to fill
up the lacunae in their case by passing an order
of remand. (Para 23)

If only the effect of the aforesaid legal
provisions (provisions of Sections 52 and 53 of
the Transfer of Property Act and Sections 102
and 103 of the Indian Evidence Act) were to be
seen, then the Lower Appellate Court being the
final court of fact and law was legally
empowered and obliged to have considered the
effect of the aforesaid sections on its own,
without remanding the matter. (Para 24)

Appeals allowed. (E-4)

Precedent followed:

1. Shivkumar & ors. Vs Sharanabasappa & ors.,
(2021) 11 SCC 277 (Para 14)

2. Sanjay Kumar Vs Amar Nath Shukla, F.A.F.O.
No. 431 of 2003, decided on 14.01.2020 (Para
20)

3. Jagannathan Vs Raju Sigamani & anr., (2012)
5 SCC page 540 (Para 20)

4. J. Balaji Singh Vs Diwaker Cole & ors., (2017)
14 SCC 207 (Para 20)

Present F.A.F.O. assails the judgment and
decree dated 11.04.2023, passed by the
Lower Appellate Court whereby two civil
appeals bearing No. 10 of 2022 and 11 of
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
2022 have been allowed and the matter
has been remanded to the Trial Court for
decision afresh.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Heard Sri Sudeep Kumar,
learned counsel for the appellants and Sri
Brijesh Kumar Saxena, learned counsel
who has put in appearance on behalf of the
respondent no. 1 in F.A.F.O.No. 158 of
2023 and F.A.F.O. No. 162 of 2023. The
learned counsel for the appellant submits
that another appeal bearing F.A.F.O. No.
162 of 2023 which is connected also arises
from the same judgment of remand and as
such both the appeals can be considered
and decided together.

2. The instant F.A.F.O. has been
preferred under Order 43 Rule (1) (u) C.P.C.
assailing the order of remand. The learned
counsel for the appellants in both the cases is
assailing the judgment and decree passed by
the Lower Appellate Court dated 18.04.2023
whereby two civil appeals bearing No. 10 of
2022 and 11 of 2022 have been allowed and
the matter has been remanded to the Trial
Court for decision afresh.

3. Sri B.K. Saxena, learned counsel
appearing for the respondent no.1-Udairaj in
both the appeals submits that since the only
legal issue regarding sufficiency of grounds for
remand is involved, accordingly, the matter can
be heard at the admission stage itself. It is in this
view of the matter that the Court has heard the
learned counsel for the parties at the admission
stage and with the consent of learned counsel
for the parties disposes of the both the appeals
by this common judgment.

4. Certain facts which are relevant for
a proper adjudication of the aforesaid
appeals are being noticed hereinafter:-

5. The property in question which is
the subject matter of the dispute is a three
storied house situate in Govind Bagh,
Balrampur, Pargana, Tehsil and District
Balrampur. The said property was initially
recorded in the name of Smt. Sushila Devi
wife of Durga Prasad. The appellant no. 1
namely Sanjay Kumar was the tenant of the
said premises since the time of Smt.
Sushila Devi. On 25.06.2001, Smt. Sushila
Devi executed a registered sale deed in
respect of the entire property in favour of
Reshu Gupta who was a minor through his
guardian and father Ram Shankar Gupta
(respondent no. 2 in the connected F.A.F.O.
No. 162 of 2023 but is not a party in
F.A.F.O. No. 158 of 2023).

6. At this stage, the Court found that
Reshu Gupta is not a party in F.A.F.O. No.
158 of 2023 and thus the Court required the
learned counsel for the appellant to implead
Sri Reshu Gupta who was the appellantvendor as a party in F.A.F.O. No. 158 of
2023 and he is permitted to carry out the
necessary amendment in the memo of
appeal of Appeal No. 158 of 2023. This has
been necessitated on account of the fact
that Reshu Gupta and Ram Shankar Gupta
are already parties in F.A.F.O. No. 162 of
2023, accordingly, in order to avoid any
future complications as well to correct the
array of parties and to do substantial justice
between the parties. The Court has
permitted the learned counsel for the
parties to do so during the course of the
day.

7. As the Court has permitted the
appellants to implead Sri Reshu as a party
to the proceedings. The appellants shall
also be at liberty of moving an application
before the Lower Appellate Court to correct
the array of parties in the memo of first
appeal including by seeking an amendment
5 All. Sanjay Kumar Modi & Anr. Vs. Udairaj & Anr.
1083
in the plaint for impleading Sri Reshu
Gupta. In case if any such application is
moved,
the
same
be
considered
appropriately in light of the fact that Sri
Reshu Gupta has already been permitted to
be impleaded in this appeal.

8. The facts would indicate that the
originally the property belonged to Smt.
Suhsila Gupta who had sold the same to
Reshu Gupta who was a minor at the
relevant time by means of sale deed dated
25.06.2001. Subsequently, Reshu Gupta
sold the property to the present appellants-
Sanjay Kumar Modi and Rashmi Modi by
means of registered sale deed dated
06.01.2006. This sale deed of the year 2006
was also executed by the minor Reshu
Gupta through his guardian and father Ram
Shanker Gupta.

9. The record would further indicate
that Smt. Sushila Gupta is said to have
instituted a suit for cancellation of the sale
deed dated 06.01.2006 against Reshu
Gupta and Ram Shankar Gupta which was
registered as Regular Suit No. 123 of 2005,
however, during the pendency of the said
suit, the said property came to be purchased
by the present appellants who were not
parties to the suit. During pendency of the
suit, upon the death of Smt. Suhshila
Gupta, one Sri Uday Raj had moved an
application seeking his substitution in place
of Smt. Sushila Gutpa on the basis of a will
executed by Smt. Sushila in his favour.
Later, upon consideration on merits, the
aforesaid suit came to be decreed by means
of judgment and decree dated 20.04.2014.

10. It is the case of the appellants
herein that Sri Uday Raj informed the
present appellants regarding the judgment
and decree dated 20.04.2014 and thereafter
the appellants herein instituted a suit
bearing
No.
134
of
2015
seeking
cancellation of the judgment and decree
dated 20.04.2014. The appellants instituted
another suit seeking declaration of their
rights bearing Regular Suit No. 163 of
2015. Since the two suits related to the
same property in between the parties in
question but they were not consolidated,
though, they were tried simultaneously.

11. Both the suits filed by the
appellants bearing R.S. No. 134 of 2015
and R.S. No. 163 of 2014 both were
decreed by means of judgment and decree
dated 09.05.2022. Being aggrieved against
the judgment and decree dated 09.05.2022
passed in the two suits separately, Sri Uday
Raj Preferred two separate Civil Appeals
under Section 96 C.P.C. before the District
Judge, Balrampur which was registered as
Civil Appeal No. 10 of 2022 which
emanated from Regular Suit No. 134 of
2022 whereas the other appeal which was
registered as Civil Appeal No. 11 of 22
related to the judgment and decree passed
in Regular Suit No. 163 of 2014.

12. Both the appeals have been
decided by a common judgment dated
11.04.2023 which is under challenge in the
two respective appeals before this Court.

13. Sri Sudeep Kumar, learned counsel
for the appellant has primarily attacked the
judgment on the point that once the Appellate
Court had applied its mind to the controversy
and
had
formulated
the
points
for
determination as indicated in the Order 41
Rule 31 C.P.C. and the entire evidence was
already on record, then there was no occasion
for the Appellate Court to have remanded the
matter by means of the impugned judgment.

14. It is submitted that unless and
until, there was any handicap faced by the
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Court which fell within the
parameters of Order-41 Rule 23-A till then
in absence of any such cogent reason, the
order of remand is not justified. The
learned Counsel for for the appellant has
relied upon a decision of the Apex Court in
Shivakumar
and
others
Vs.
Sharanabasappa and Others; (2021) 11
SCC 277.

16. Per contra, Sri B.K. Saxena,
learned counsel for the respondents submits
that in so far as the legal submissions
regarding
the
power
of
remand
is
concerned, he submits that it is now well
settled that an endevour should be made by
the Appellate Court to consider and decide
the matter on merits as far as possible
where the parties have already led the
entire evidence.

15. He also submits that the issue
which was to be considered was duly
covered in light of the evidence which was
already available on record and to that
extent, he does not support the impugned
judgment. He very fairly submits that ends
of justice can be met in case if the
impugned orders are set aside, however,
while requiring the Lower Appellate Court
to decide the matter afresh, some time
frame may be fixed so that the longstanding
controversy can be put to an end.

16. He further submits that in light of
the contentions which have been raised by
the parties and as noticed by the Lower
Appellate Court but only two points for
determination have been framed, however,
they
do
not
encapsulate
the
entire
controversy comprehensively. He submits
that it should be open for the parties to raise
their plea whichever is available and fresh
points for determination may be framed by
the Lower Appellate Court to which the
learned counsel for the appellant also has
no objection.

17. The Court has heard the learned
counsel for the parties and also perused the
material on record.

18. Before adverting to the respective
submissions, it will be apposite to notice
the scope of remand in terms of Order 41
Rule 23 and Order 41 Rule 23-A C.P.C. and
for ready reference, the same is being
reproduced hereinafter:-

"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."

19. The Apex Court in Shiv Kumar
(supra) is in detail considered the scope of
remand in paragraph nos. 26 to 26.6 of the
said report after noticing the relevant
5 All. Sanjay Kumar Modi & Anr. Vs. Udairaj & Anr.
1085
provisions for remand contained in Order
41 Rule 23, Rule 23-A, Rule 24 and Rule
25 in paragraphs 26.3 to 26.6 held has
under:-

"26.3. A comprehension of the scheme
of the provisions for remand as contained
in Rules 23 and 23-A of Order 41 is not
complete without reference to the provision
contained in Rule 24 of Order 41 that
enables the appellate court to dispose of a
case finally without a remand if the
evidence
on
record
is
sufficient;
notwithstanding that the appellate court
proceeds on a ground entirely different
from that on which the trial court had
proceeded.

26.4. A conjoint reading of Rules 23,
23-A and 24 of Order 41 brings forth the
scope as also contours of the powers of
remand that when the available evidence is
sufficient to dispose of the matter, the
proper course for an appellate court is to
follow the mandate of Rule 24 of Order 41
CPC and to determine the suit finally. It is
only in such cases where the decree in
challenge is reversed in appeal and a
retrial is considered necessary that the
appellate court shall adopt the course of
remanding the case. It remains trite that
order of remand is not to be passed in a
routine manner because an unwarranted
order of remand merely elongates the life of
the litigation without serving the cause of
justice. An order of remand only on the
ground that the points touching the
appreciation of evidence were not dealt
with by the trial court may not be
considered proper in a given case because
the first appellate court itself is possessed
of jurisdiction to enter into facts and
appreciate the evidence. There could, of
course, be several eventualities which may
justify an order of remand or where remand
would be rather necessary depending on
the facts and the given set of circumstances
of a case.

26.5. It gets perforce reiterated that
the occasion for remand would arise only
when the factual findings of the trial court
are reversed and a retrial is considered
necessary by the appellate court.
26.6. The present case had clearly been the
one where the parties had adduced all their
evidence, whatever they wished to; and it
had not been the case of the appellantplaintiffs that they were denied any
opportunity to produce any particular
evidence or if the trial was vitiated because
of any alike reason. As noticed, there had
been several suspicious circumstances
surrounding the will in question, some of
which were noticed by the trial court but
were brushed aside by it on untenable
reasons. The High Court has meticulously
examined the same evidence and the same
circumstances and has come to a different
conclusion that appears to be sound and
plausible, and does not appear suffering
from any infirmity. There was no reason or
occasion for the High Court to consider
remanding the case to the trial court. The
contention in this regard is required to be,
and is, rejected."

20. This Court in Sanjay Kumar
Vs.Amar Nath Shukla in F.A.F.O. No. 431
of 2003 decided on 14.01.2020 also had the
occasion to consider the scope of remand
wherein this Court had relied upon the
decision of the Apex Court in Jegannathan
vs. Raju Sigamani & Anr., reported in
(2012) 5 SCC Page 540, and J. Balaji
Singh vs. Diwaker Cole & Ors., reported
in (2017) 14 SCC 207.

21. Having noticed the scope of
remand
and
applying
the
aforesaid
principles to the facts of the case, it would
indicate that the Lower Appellate Court has
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
not exercised the powers of remand in its
correct perspective. The reasoning given by
the Lower Appellate Court in paragraphs 9
to 11 of the impugned judgment does not
reflect conscious application of judicial
principles as required to be applied before a
remand order is passed.

22. From the perusal of the impugned
order, it only reveals that the Lower
Appellate Court made reference to certain
sections such as Sections 52 and 53 of the
Transfer of Property Act and Section 101
and 102 of the Indian Evidence Act,
however, what the Lower Appellate Court
has failed to notice as to how the aforesaid
sections would create any handicap for the
Appellate Court to have decided the matter.
In the instant case, this Court finds that the
parties have led their entire evidence and
there is no reference made by the Lower
Appellate Court that any particular issue or
on any particular aspect of the matter, the
parties have not been able to lead evidence
which was imperative which leads the
Lower Appellate Court to remand the
matter. This is to be kept in mind especially
in context of the fact that the Court cannot
permit the parties to fill the up the lacunae
in their case by passing an order of remand.

23. It is also to be seen that the Lower
Appellate Court has not given any reason
whatsoever as to why the remand has been
necessiated except that the provisions of
Sections 52 and 53 of the Transfer of
Property Act and Sections 102 and 103 of
the Indian Evidence Act have not been
considered. If only the effect of the
aforesaid legal provisions were to be seen,
then the Lower Appellate Court being the
final court of fact and law was legally
empowered and obliged to have considered
the effect of the aforesaid sections on its
own, without remanding the matter.

24. It is also to be noticed that the
power of remand is not to be exercised
casually or it cannot be a ground to merely
shirk from the responsibility of deciding
the matter on merits since the powers of the
Lower Appellate Court under Section 96
C.P.C. is wide and akin to that of the Trial
Court and in any case being the Court of
first appeal, it is legally obliged to consider
points of fact and law afresh and under the
aforesaid circumstances, there was no
justification for the Lower Appellate Court
to have remanded the matter.

25. In view of the aforesaid, this
Court finds that there is no appropriate
reason nor any justifiable cause mentioned
in the impugned order which can support
the order of remand, accordingly, the
impugned judgment and decree orders
dated 11.04.2023 passed in the two appeals
are liable to be set aside.

26. In view of the aforesaid, the two
appeals bearing F.A.F.O. No. 158 of 2023
and F.A.F.O. No. 162 of 2023 shall stand
allowed. The judgment and decree passed
by the Lower Appellate Court dated
11.04.2023 passed in First Appeal No. 10
of 2022 and 11 of 2022 is set aside. The
appeals shall stand restored on the Board
of the District Judge, Balrampur. The
parties shall appear before the District
Judge, Balrampur on 10.07.2023. The
Lower
Appellate
Court
shall
after
affording full opportunity of hearing to
the parties, including permitting them to
raise all their contentions, shall decide
the appeals afresh on merits preferrably
within a period of three months from the
date the parties appear before the Lower
Appellate
Court.
In
the
facts
and
circumstances, there shall be no order as
to costs.
----------
5 All. Amit Sharma Vs. Smt. Shiksha
1087
(2023) 5 ILRA 1087
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 19 of 2023

Amit Sharma ...Revisionist
Versus
Smt. Shiksha ...Respondent

Counsel for the Revisionist:
Sri Babban Prasad Dwivedi, Sri Hriday Narayan
Pandey

Counsel for the Respondent:
Sri Ashish Kumar Singh

Civil Law - Civil Procedure Code, 1908 -
Order 15 - Rule 5 & (5(1), - UP Urban
Buildings Regulation of Letting, Rent and
Eviction Act, - Section 30 - Rent Agreement -
between
revisionist-defendant
and
plaintiffrespondent - Suit - Decreed - order, challenged by
revisionist - defendant on the ground that, plaintiffopposite party has filed an application under O. 15
R. 5 to strike of revisionist-defendant, which was
duly replied - but, while passing order trial court
not considered properly - court finds that, so far
fact of the case is concern, it relates to nondeposit of monthly rent is undisputed - revisionistdefendant had no option, but to deposit rent on
month to month basis after initiation of the suit
proceeding and after first date of hearing of case -
held, once it is undisputed that rent has not been
deposited before the court concerned there is no
provision in law to grant any relief, but the only
option is to strike off the defence as provided in O.
XV R. 5 of CPC - no illegality & infirmity in the
impugned order, found - accordingly, revision lacks
merit and is dismissed.

Revision Dismissed. (E-11)

List of Cases cited:

1. Radhe Shyam Chaurasiya & anr. Vs Smt.
Babita, 2022 ADJ 272,
2. Asha Rani Gupta Vs Sri Vineet Kumar, (2022)
0 Supreme (SC) 594

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Heard learned counsel for the
revisionist and Sri Ashish Kumar Singh,
learned counsel for the opposite party.

3. Present Revision has been filed
challenging the order dated 20.01.2023 as
well as Decree dated 25.01.2023, passed by
the Additional District & Session Judge,
Ghaziabad in Suit No. 42 of 2016.

4. Learned counsel for the revisionistdefendant submitted that Suit No. 42 of
2016 was filed by the plaintiff-opposite
party. He next submitted that plaintiffopposite party has filed application dated
09.02.2022 under Order XV, Rule 5, C.P.C.
to strike off the defence of the revisionistdefendant, which is dully replied by
revisionist-defendant
by
reply
dated
18.04.2022. He next submitted that, while
passing the impugned order dated 20.01.2023
reply of revisionist-defendant has not been
properly considered. In the reply dated
18.04.2022, revisionist-defendant has stated
that filing of Suit No. 42 of 2016 was itself
defective, as it has been filed before 30 days
from the date of notice sent by the counsel for
the plaintiff. He also submitted that as the
rent agreement was extended for 11 months
w.e.f. 01.02.2016 and he had paid the entire
dues, therefore, nothing was due on the
petitioner-defendant
to
pay,
therefore,
impugned order is bad and is liable to be set
aside.

5. Learned counsel for the revisionistdefendant submitted that Order XV Rule 5