# Smt. Manokamini Devi v. Ashok Kumar

- **Citation:** (2020) 1 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-24
- **Case number:** First Appeal From Order No. 581 of 2001
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manokamini-devi-v-ashok-kumar-45683
- **Pages:** 7

## Headnote

A. Code of Civil Procedure 1908 - Order
XLI Rule 25 - Power of appellate Court -
Powers of the appellate court and those
of trial court are co-extensive - Learned
appellate court had power to get the
survey map prepared - Once the appellate
court has power to get the survey map
prepared the remand only for the purpose
of getting the survey map prepared may
not be a good ground - Moreover, Order
XLI Rule 25 provides that to determine
any question of fact, the appellate court
may, if necessary, frame issues and refer
the same to the trial court - In such case
the appellate court shall direct such trial
court to take an additional evidence
required and shall return the evidence to
the appellate court together with its
findings thereon - Appellate Court erred
in disposing of the appeal - Held, order of
appellate court liable to be modified with
necessary direction. (Para 13, 16, 17 & 18)
1 All. Smt. Manokamini Devi Vs. Ashok Kumar
273
First Appeal From Order allowed. (E-1)

List of cases cited :-

## Text

272 INDIAN LAW REPORTS ALLAHABAD SERIES
the instant case the learned Tribunal has
found that the name of the claimant has
been mutated in revenue records after the
death of deceased and both brothers were
living in a joint family and their parents
have already died. Therefore the learned
Tribunal rightly concluded the claimants
to be legal representative of the deceased.
As such the argument of the learned
counsel to appellant that the claimants are
brother and bhabhi is only relevant for the
purpose of determining dependency which
is
significant
for
the
purpose
of
ascertaining the quantum of compensation.

12. The learned Tribunal on the basis of
evidence determined the age of the deceased
in between 30 to 35 and, therefore, applied
the multiplier of 15. In Sarla Verma v Delhi
Transport Corporation Ltd., AIR 2009 SC
3104, a multiplier of 16 could have been
taken. Therefore the appellant should not be
aggrieved by the use of the multiplier of 15.
The learned Tribunal finding the deceased to
be driver and concluding that he might not
have regular assignment, hypothetically,
determined the income to be Rs. 2500/-
monthly and thus Rs. 30000/- in an year. It
cannot be said to be in higher side. The
learned Tribunal did not stop here and took
the view that after being married, the
deceased could spare money out of his
income to the extent of only 1/3rd for the
claimants and thus made a deduction of 2/3rd
and determined the amount of compensation
to be only 150000/- which is again in a very
lower side. The appellant has submitted for
only 50% deduction and therefore, there is no
reason for he becoming aggrieved. I find the
amount of compensation is in lower side and
need not to be disturbed.

13. On the basis of the above
discussion, I find no force in appeal and
the appeal is liable to be dismissed.

14. Appeal is dismissed accordingly.

15. The amount of Rs. 25000/-
deposited by appellant at the time of filing
the appeal shall be remitted back to the
learned Tribunal to be paid to the claimant.
----------
(2020)1ILR 272

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 581 of 2001

Smt. Manokamini Devi ...Appellant
Versus
Ashok Kumar ...Respondent

Counsel for the Appellant:
N.N. Jaiswal

Counsel for the Respondent:
D.P.S. Chauhan, Ran Vijai Singh

A. Code of Civil Procedure 1908 - Order
XLI Rule 25 - Power of appellate Court -
Powers of the appellate court and those
of trial court are co-extensive - Learned
appellate court had power to get the
survey map prepared - Once the appellate
court has power to get the survey map
prepared the remand only for the purpose
of getting the survey map prepared may
not be a good ground - Moreover, Order
XLI Rule 25 provides that to determine
any question of fact, the appellate court
may, if necessary, frame issues and refer
the same to the trial court - In such case
the appellate court shall direct such trial
court to take an additional evidence
required and shall return the evidence to
the appellate court together with its
findings thereon - Appellate Court erred
in disposing of the appeal - Held, order of
appellate court liable to be modified with
necessary direction. (Para 13, 16, 17 & 18)
1 All. Smt. Manokamini Devi Vs. Ashok Kumar
273
First Appeal From Order allowed. (E-1)

List of cases cited :-

1. Ram Bali Singh and others Versus Ram
Sakal, 1990 (8) LCD 282

2. H.V.Vedayvasachar Versus Shivshankara and
another, 2010(1)AWC 110 (SC)
3. Bachahan Devi & another Versus Nagar
Nigam, Gorakhpur and others; (2008) 12 SCC
372

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Prashant Jaiswal,
Advocate
holding
brief
of
Shri
N.N.Jaiswal, learned counsel for the
appellant and Shri Ran Vijai Singh,
learned counsel for the respondents.

2. This First Appeal From Order has
been filed challenging the judgment and
order dated 17.10.2001, passed in Regular
Civil Appeal No.57 of 1993;Manokamini
Devi Versus Ashok Kumar.

3. The appellant had filed a Regular
Suit No.450 of 1987 for mandatory
injunction before the Munsif, Barabanki
alleging therein that the plot no.158
situated in village Chakkazipur, Pargana
and Tehsil-Fatehpur, District-Barabanki
was belonging to Smt. Rani Kaneez Ali
which was her bhumidhari holding. She
had partitioned this plot into five smaller
plots and sold those plots to different
persons.
The
plaintiff-appellant
had
purchased one of these plots of Khasara
No.158, which is depicted in the site plan
as 1-B. It was purchased through a
registered sale deed dated 17.09.1977 and
the
possession
was
also
obtained.
According to the plotting scheme of
Smt.Rani Kaneez Ali there were three
plots i.e. 3, 4 and 5 on the northern side
and plot nos.1 and 2 on the southern side
and there was a 20 feet road in between
them.
The
defendant-respondent
had
purchased plot nos.3,4 and 5 depicted in
the site plan. The defendant had started
encroaching the road in between the plot
nos.1 and 2 on one side and 3, 4 and 5 on
the other side on points A, B, C and D
depicted in the site plan. The appellant
tried to stop the defendant but he did not
stop and raised a wall of 50 feet long and 5
feet high, therefore the suit was filed.

4. The respondent-defendant had filed
written statement and cross objection with a
prayer for permanent injunction alleging
therein that the appellant and respondent
have purchased half-half portion of the road
in between the plots and paid Rs.500/- each
to Smt. Rani Kazeez Ali and he tried to raise
some
construction
on
his
portion.
Accordingly 10 feet out of the 20 feet road is
of the defendant-respondent out of which 5
feet land has been encroached by the
plaintiff-appellant.

5. On the basis of the pleadings of the
parties five issues were framed. After evidence
the suit for mandatory injunction of the
plaintiff-appellant was decreed in her favour
and the defendant-respondent was directed to
remove the encroachment. The counter claim
of the defendant-respondent was also allowed
and the plaintiff-appellant was directed to
remove the construction. The suit was decreed
by means of the judgment and order dated
02.09.1993. The judgment and order passed by
the trial court was assailed by the plaintiffappellant by filing a regular Civil Appeal in the
court of District Judge, Barabanki. In the
appeal also cross objection was filed by the
respondent.

6. After considering the pleadings of
the parties learned appellate court found
274 INDIAN LAW REPORTS ALLAHABAD SERIES
that it is not in dispute that both the parties
have purchased their plots in question
from Smt. Rani Kaneez Ali and it is also
not in dispute that the lay out plan in
regard to the concerned plots in question
were annexed with the sale deed. However
the
appellate
court
found
that
on
measuring the Map prepared by the
Commissioner
on
the
basis
of
measurement of 1 cm.=10 feet the position
of the spot in question is not correct and
the distance shown between the different
points is not correct and there is
difference.
On
account
of
these
discrepancies the learned appellate court
found that the position of the spot is not
clear therefore it cannot be ascertained as
to how much of area has been encroached
and the constructions have been raised by
the parties. Therefore, without ascertaining
the correct position of the spot the correct
conclusion cannot be drawn. The learned
appellate court disposed of the appeal and
remanded the matter to the trial court with
direction to get the issues disposed of after
getting the correct Map of the site
prepared. However, the judgment passed
by the learned trial court has not been set
aside. Hence the present appeal has been
filed by the plaintiff-appellant.

7. Submission of learned counsel for
the appellant was that the learned appellate
court has wrongly and illegally remanded
the case without setting aside the judgment
and order passed by the trial court on the
ground
that
the
report
of
the
Commissioner as per the scale given is not
correct while commissioner's report was
never challenged by any of the parties
either before the trial court or before the
appellant court. Even then if the appellate
court
was
of
the
view
that
the
commissioner's report was wrong the
appellate court could have called for a
fresh commissioner's report and decided
the appeal accordingly on its merit. The
learned appellate court has wrongly and
illegally on the basis of some minor
mistake in the commission report has
ignored the relevant documentary and oral
evidence adduced by the parties and
avoided the admitted facts with regard to
the 20 feet road. Therefore the impugned
judgment is not sustainable and is liable to
be set aside. Learned counsel for the
appellant has relied on 1990 (8) LCD
282;Ram Bali Singh and others Versus
Ram Sakal and 2010(1)AWC 110
(SC);H.V.Vedayvasachar
Versus
Shivshankara and another.

8. On the other hand learned counsel
for the respondents had submitted that the
appellate court has rightly remanded the
case because once it was found that the
commissioner's report was not correct the
alleged
encroachment
made
by
the
respondent which come to 9 feet in place
of 14.6 feet and the distance between the
plots of the appellant and the respondent
will reduce from 20 feet.

9. I have considered the submissions
of learned counsel for the parties and
perused the record.

10. The facts regarding purchase of
plots by the parties from Smt.Rani Kaneez
Ali and road of 20 feet in between the
plots are not in dispute. The filing of
Regular Suit for mandatory injunction by
the plaintiff-appellant and cross objection
claiming permanent injunction by the
respondent with a prayer for removal of
the encroachment by the parties are also
not in dispute. The regular suit as well as
the
cross
objection
were
allowed.
Therefore, the Regular Civil Appeal was
filed by the plaintiff-appellant and cross
1 All. Smt. Manokamini Devi Vs. Ashok Kumar
275
objection was filed by the defendantrespondent.

11.

The
short
question
for
consideration by this court is as to whether
the commissioner's report which was never
objected by either of the parties could have
been discarded by the learned appellate
court
and
on
account
of
some
discrepancies in the commissioner's report
the matter could have been remanded to
the trial court without setting aside the
judgment and order passed by the trial
court.

12. It is not in dispute that no
objections were filed by either of the
parties against the commissioner's report.
However, if the learned appellate court has
found that on the basis of scale of 1
cm.=10 feet, on which the map was
prepared by the commissioner, the correct
position of the land in question and
encroachment
thereon
could
not
be
ascertained and the correct conclusion can
not be drawn, the learned appellate court
has not committed any illegality or error in
not accepting the report. The learned
counsel for the appellant has also failed to
disclose any discrepancy in the findings
recorded by the learned appellate court in
regard to the commissioner's report except
that no objection was filed. Therefore, now
the question arises as to whether the
learned appellate court should have
decided the appeal after calling a fresh
commissioner's report or could have
remanded the matter.

13. It is settled proposition of law
that the powers of the appellate court and
those of trial court are co-extensive and
the learned appellate court had therefore
power to get the survey map prepared.
Once the appellate court has power to get
the survey map prepared the remand only
for the purpose of getting the survey map
prepared may not be a good ground. This
court in the case of Ram Bali Singh and
others Versus Ram Sakal (Supra) has
held so and with the consent of the parties
remanded the matter to the appellate court
with direction to decide the controversy
himself after getting the requisite map
prepared. But in the present case the
learned appellate court has not only
directed to get the map prepared but has
also directed to dispose of the issues on the
basis of the map after determination of
distance from Mahmoodabad-Ram Nagar
road to the shops and the distance of the
house of the appellant, width of the road in
dispute on spot and the nature of area of
encroachment because on the basis of the
commissioner's report it could not be
ascertained.

14. The Hon'ble Apex court in the
case of H.V. Vedavyasachar Versus
Shivshankara and another (Supra) has
held that the order of remand can only be
passed in terms of Order XLI Rule 23,
Order XLI Rule 23A, Order XLI Rule 25
of the Code of Civil Procedure and on
finding that none of the said provisions
have any application in that case modified
the order passed by the High Court and
directed the learned trial court to remit the
matter
to
the
appellate
court
after
recording the evidence as directed by the
High Court within the time provided and
thereafter directed the first appellate court
to dispose of the appeal on receipt of the
order and the evidence within the time
provided keeping in view the fact that the
appellant was dispossessed as far back as
in 1993.

15. In the present case the appellate
court came to the conclusion that for
276 INDIAN LAW REPORTS ALLAHABAD SERIES
recording the correct conclusion the
position of the spot is essential and in
absence thereof no conclusion can be
drawn and remanded the matter to the trial
court to get the correct map prepared and
thereafter dispose of the issues but neither
set aside the judgment nor directed to the
trial court to return the findings and
reasons therefor.

16. Order XLI Rule 25 of the Code
of Civil Procedure 1908 provides that to
determine any question of fact which
appears to the appellate court essential to
the right decision of the suit upon the
merits, the appellate court may, if
necessary, frame issues and refer the same
for trial to the court from whose decree the
appeal is preferred and in such case the
appellate court shall direct such court to
take an additional evidence required and
such court shall proceed to try such issues
and shall return the evidence to the
appellate court together with its findings
thereon and the reasons therefor within
such time as may be fixed by the appellate
court or extended by it from time to time.
Rule 25 of Order XLI of the Code of Civil
Procedure 1908 is extracted below:-

"25. Where appellate Court
may frame issues and refer them for trial
to Court whose decree appealed fromWhere the Court from whose decree the
appeal is preferred has omitted to frame
or try any issue, or to determine any
question of fact, which appears to the
Appellate Court essential to the right
decision of the suit upon the merits, the
Appellate Court may, if necessary, frame
issues, and refer the same for trial to the
Court from whose decree the appeal is
preferred, and in such case shall direct
such Court to take the additional evidence
required; and such Court shall proceed to
try such issues, and shall return the
evidence to the Appellate Court together
with its findings thereon and the reasons
therefor [within such time as may be fixed
by the Appellate Court or extended by it
from time to time]."

17. In view of above it appears that
the learned Appellate court has remitted
the matter to the trial court to call a correct
report and return the same together with its
findings thereon and the reasons therefor
to the appellate court so the correct
conclusions may be drawn and the appeal
may be decided on merit therefore the
order passed by the trial court has not been
set aside. But instead of fixing any time
has disposed of the appeal which could not
have been done by the appellate court. The
Hon'ble Apex in the case of Bachahan
Devi & another Versus Nagar Nigam,
Gorakhpur and others;(2008) 12 SCC
372 has held in paragraphs 9 and 10 as
under:-

"9. Under Order XLI Rule 25, if
it appears to the Appellate Court that any
fact essential for the decision in the suit
was to be determined, it could frame an
issue on the point and refer the same for
trial, to the Court from whose decree the
appeal is preferred and in such case, shall
direct such court to take additional
evidence required. The order of remand
should not be passed as a matter of
routine. The First Appellate Court which
has the power to analyse the factual
position can decide the issue and the
additional issues. In the instant case the
First Appellate Court, inter alia, observed
as follows:

"As such, it would not be proper
for the first Appellate Court in such matter
to itself record the evidence and to give its
findings in regard to newly created issues.
1 All. Smt. Manokamini Devi Vs. Ashok Kumar
277
The Hon'ble High Court has also held that
in the present matter under the provision
of Order 41 Rule 25 of Civil Procedure
Code, becomes mandatory (shall) though
in this provision, the word 'may' has been
used. No doubt in the present matter also
the Appellate Court has framed 6
additional issues which are legal in nature
and also factual, with the result if the
Appellate Court gives its findings relating
to said legal and factual issues after itself
recording (receiving) evidence then the
aggrieved party would be prevented from
his right of filing first appeal. Accordingly,
the aforesaid ratio laid down by the
Hon'ble High Court is fully applicable in
the present matter."

10. A bare reading of the
provision makes it clear that the same
comes into operation when the Court, from
whose decree the appeal is preferred, has
omitted to frame or try and issue, or to
determine any question of fact which
appears to the appellate court essential for
the right decision of the suit upon the
merits. In order to bring in application of
Order XLI Rule 25 the appellate court
must come to a conclusion that the lower
court has omitted to frame issues and/or
has failed to determine any question of
fact which in the opinion of the appellate
court are essential for the right decision of
the suit on merits. Once the appellate
court comes to such a conclusion it may, if
necessary, frame the issues and refer the
same to the trial court. In other words
there is no compulsion on the part of the
appellate Court to do so. This is clear
from the use of the expression 'may'. But
the further question that arises is whether
in such a case the appellate court is bound
to direct the trial court to take additional
evidence required. This is a mandatory
requirement as is evident from the
provision itself because it provides that the
lower court shall proceed to try such case
and shall return the evidence to the
appellate court together with findings
therein and the reasons therefor. As noted
above, the provision becomes operative
when the appellate court comes to the
conclusion about the omission on the part
of the lower court to frame or try any
issue. Once the appellate court directs the
lower court to do so, it is incumbent upon
the trial court to take additional evidence
required. As has been rightly contended by
learned counsel for the appellant, there
may be cases where additional evidence
may not be required. But where the
additional evidence is required, then the
lower court has to return the evidence so
recorded to the appellate court together
with the findings thereon and the reasons
therefor. Requirement for recording the
finding of facts and the reasons disclosed
from the facts is because the appellate
court at the first instance has come to the
conclusion that the lower court has
omitted to frame or try any issue or to
determine any question of fact material for
the right decision of the suit on merits. It
has to be noted that where a finding is
called for on the basis of certain issues
framed by the appellate court, the appeal
is not disposed of either in whole or in
part. Therefore the parties cannot be
barred from arguing the whole appeal
after the findings are received from the
court of the first instance. This position
was highlighted in Gogula Gurumurthy
and Others v. Kurimeti Ayyappa (1975(4)
SCC 458), where it was inter-alia
observed in para 5 as follows:

"We consider that when a
finding is called for on the basis of certain
issues framed by the appellate Court the
appeal is not disposed of either in whole
or in part. Therefore the parties cannot be
barred from arguing the whole appeal
278 INDIAN LAW REPORTS ALLAHABAD SERIES
after the findings are received from the
court of first instance. We find the same
view taken in Gopi Nath Shukul v. Sat
Narain Shukul (AIR 1923 All 384)."

18. In view of above, this court is of the
view that the judgment and order passed by the
appellate court is liable to be modified to the
extent that the trial court after getting the correct
map prepared record its findings on the issues
and the reasons therefor and send the same to
the appellate court so that the appellate court
may decide the appeal on merit. It would also be
appropriate because the Regular Suit is of the
year 1987 and Regular Civil Appeal of the year
1993. The appeal is accordingly partly allowed
and the judgment and order dated 17.10.2001
passed in Regular Civil Appeal No.57 of 1993
stands modified to the extent indicated above
with the following directions:-

1. The learned Trial Court, after
receiving record shall call report of the
commissioner with the correct map of the
spot and thereafter after recording its
findings
and
reasons
therefor
in
accordance with law as directed by the
appellate court, shall send the record
alongwith its findings and the reasons
therefor
to
the
appellate
court
expeditiously and preferably within a
period of three months from the date of
receipt of the record.

2. After receipt of the findings
and reasons therefor from the trial court
alongwith the record, the appellate court
shall decide the Regular Civil Appeal
No.57 of 1993 in accordance with law on
merit expeditiously and preferably within
a period of three months from the date of
receipt from the trial court.

19. The appeal is, accordingly,
partly
allowed
with
the
aforesaid
directions. No order as to costs.

20. The lower Court record shall be
remitted to the concerned trial court forthwith.
----------
(2020)1ILR 278

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

First Appeal From Order No. 719 of 2000

Ravindra Pal Yadav ...Appellant
Versus
Smt. Badami Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri I.N. Singh, Sri Ajay Yadav, Sri Arvind
Kumar Srivastava, Sri Ram Bilas Yadav

Counsel for the Respondents:
Sri A.A. Khan, Sri A.K. Srivastava, Sri
Ashok Kumar Singh, Sri Gaurav Singh

A. Motor Accident Act, 1988 - Driving
Licence - Validity and effectiveness -
Driving
licence
does
not
lose
its
effectiveness merely on ground that the
vehicle in question though registered for
commercial purpose was being used at the
time of the accident for private purpose -
validity of the driving licence cannot be
doubted even in the absence of any
particular or special endorsement made on
it as that requirement is not legal one -
Finding recorded by the Tribunal is on the
face perverse, erroneous - Held, the driver
of the offending vehicle was duly licensed.

First Appeal From Order allowed. (E-1)

List of cases cited: -

1. Mukund Dewangan Vs. Oriental Insurance
Company Ltd. 2017 (14) SCC 663

2. United India Insurance Co. Ltd. Vs. Smt.
Shashi Prabha Sharma and others AIR 2015
Allahabad 167 Full Bench Allahabad High Court