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CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 874 OF 2016
Rameshlal Gurudasmal Adwani
Since deceased by his legal heirs and representatives.
Vinod Rameshlal Adwani
Age: 45 years, Occ: Business
Residing at Plot No. 20, C.S. No. 262, E Ward, Hindurao Ghatge Colony, Kadamwadi Road, Kolhapur – 416003 ….Appellant
Vs.
1. Gajanan Dadoba Pawar
Age: 69 years, Occ: Retired
Residing at Sardar Park, Devkar Panand, Plot No. 1, Kolhapur.
2. Ajeet Ganpatrao Mogale, Age: 59 years, Occ: Service
Residing at 1736, E-Ward, Rajarampuri, 6th
Lane, Kolhapur.
3. Prashant Gajanan Pawar, Age: 36 years, Occ: Developer
Residing at 904/1, ‘A’ Ward, Sardar Park, Devkar Panand, ….Respondents
Kolhapur.
Ms. Anjali N. Helekar a/w Ms. Anu Kaladharan a/w Ms. Astha
Arya for the appellant
Mr. Bhushan Jadhav i/b Mr. Mandar Bagkar for respondent no.
Mr. Chetan G. Patil for respondent no. 3
ORAL JUDGMENT
1. This appeal is preferred by the plaintiff to challenge the judgment and order passed by the first Appellate Court remanding the suit to the Trial Court for deciding it afresh. The Appellate Court has set aside the decree for declaration and specific performance passed by the Trial Court in favour of the plaintiff and remanded the matter to the Trial Court to frame issues and permitted the parties to lead evidence and decide the suit de novo. Submissions on behalf of the appellant (plaintiff):
2. Learned counsel for the appellant submits that the suit was filed for specific performance of an agreement dated 11th September 2002, executed by defendant no. 2 in favour of the plaintiff. During the subsistence of the agreement in favour of the plaintiff, defendant no. 2 executed a registered sale deed in favour of defendant no. 3 on 11th September 2003. The suit plot was owned by defendant no. 2 in a cooperative society. Since defendant no. 2 failed to perform his part of the contract, the suit was filed for a declaration that the subsequent sale executed in favour of defendant no. 3 is illegal and not binding upon the plaintiff. The plaintiff prayed for specific performance of the contract dated 11th September 2002, executed by defendant no. 2 in favour of defendant no. 3.
3. Learned counsel for the appellant further points out the defence of defendant nos. 2 and 3. She submits that defendant no. 2 contended that since the specific performance could not be performed in favour of the plaintiff, the agreement was cancelled by him by returning the earnest amount. In view of these rival pleadings, the Trial Court framed the issues regarding the legality of the suit agreement in favour of the plaintiff, readiness and willingness to perform the contract and whether the transactions between defendant nos. 2 and 3 were binding upon the plaintiff, including other issues regarding whether defendant no. 3 was a bonafide purchaser for value without notice. All the other issues with regard to the transaction between defendant nos. 2 and 3 and the plaintiff’s entitlement to get the specific performance of the agreement were also framed by the Trial Court. Both parties led substantial evidence in support of their rival contentions. Accordingly, the suit was decreed in favour of the plaintiff.
4. Learned counsel for the appellant points out the reasons recorded by the First Appellate Court to remand the matter for a de novo trial. She points out the additional issues framed by the Appellate Court in paragraph 24 of the judgment. So far as the issues as framed by the Appellate Court are concerned, the parties have already led evidence in the trial on the issues proposed by the Appellate Court. Regarding the additional issue no. 4 framed by the Appellate Court on the reply given by defendant no. 2 for cancelling the suit agreement, learned counsel for the appellant submits that though a specific issue regarding cancellation of the suit agreement was not framed by the Trial Court, the parties have led substantial evidence on the subsistence of the suit agreement and defendant no. 2’s contention regarding the cancellation of the suit agreement. The parties have also led evidence on the dispute raised by the plaintiff on the refund of the earnest amount, and the cancellation of the suit agreement.
5. Learned counsel for the appellant, therefore, submits that the Appellate Court, being the last fact-finding court, was required to re-examine the substantial evidence on record. However, the Appellate Court, by ignoring the relevant provisions of Rule 22 to Rule 25 of Order XLI of the Code of Civil Procedure, 1908 (‘CPC’), set aside the judgment of the Trial Court and remanded the matter for a de novo trial. Learned counsel for the appellant relies upon Rule 24 of Order XLI of the CPC. She submits that in view of Rule 24, the Appellate Court could have reframed the issues, if found necessary and determined the suit finally. Considering the substantial evidence led by both parties on all the rival issues that arose in the suit, there was no reason for the Appellate Court to reverse the Trial Court’s decree and remand the suit for deciding it afresh.
6. To support her submissions, learned counsel for the appellant relies upon the following decisions:
I. Shivkumar and Others Vs. Sharanbasappa and Others[1],
II. Barku Pundlik Patil (since deceased) through LRs and ors[2] and
III. Balkrishna Dattatraya Butte and Ors Vs. Dattatraya
7. Learned counsel for the appellant submits that it is a well- 1 (2021) 11 Supreme Court Cases 277 2 2023(1) Mh.L.J. 722 3 1998(2) ALL MR 740 established legal principle that the order of remand should not be passed as a matter of routine or on mere asking. Based on the evidence on record, the Appellate Court could have resettled the issues and finally determined the suit based on the evidence on record. Hence, there was no reason in the present case to remand the matter to the Trial Court. The Hon’ble Apex Court in the case of Shivkumar, held that Rule 24 of Order XLI of CPC enables the Appellate Court to dispose of a case finally without 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 has proceeded. She submits that, as held by the Hon’ble Apex Court, in view of the conjoint reading of Rules 23, 23A and 24 of Order XLI of the CPC, there was no reason for the Appellate Court to remand the matter for a de novo trial. A similar view was taken in the case of Barku Pundlik Patil.
8. Learned counsel for the appellant submits that, except for framing additional issues in paragraph 24 of the judgment, the Appellate Court has not recorded any findings by referring to the evidence on record. The Appellate Court has reversed the Trial Court’s finding and remanded the matter for a de novo trial without even considering the evidence on record. Without recording any valid reason for a de novo trial and by reversing the Trial Court’s findings, the impugned order remanding the matter for deciding it afresh would not be sustainable. She, therefore, submits that the appeal needs to be allowed by remanding the matter to the First Appellate Court for deciding it in accordance with the law. Submissions on behalf of the respondent no. 3:
9. Learned counsel for the respondent no. 3, i.e., the subsequent purchaser, supports the impugned order. He points out that on 22nd February 2003, defendant no. 2 had intimated cancellation of the agreement and refund of the earnest amount to the plaintiff. He submits that in the plaint as well as the cross-examination, the plaintiff has admitted receipt of the letter dated 22nd February 2003. Even to the reply to the notice of the plaintiff, defendant no. 2 contended that the suit agreement stands cancelled. Though the suit agreement was terminated, the plaintiff has not challenged the termination and has not prayed for any declaration. Thus, without seeking a declaration on the subsistence of the suit agreement, the plaintiff would not be entitled to seek any specific performance of the contract. In the absence of a declaratory relief, the plaintiff’s suit for specific performance would not be maintainable. Therefore, the Appellate Court has rightly reversed the Trial Court’s findings in its entirety and remanded the matter to the Trial Court for deciding it afresh.
10. Learned counsel for the respondent no. 3 submits that such a remand for a de novo trial will eliminate the possibility of the plaintiff’s contention that there was no opportunity for the parties to lead evidence on the maintainability of the suit for specific performance in the absence of a declaratory relief. To support his submissions, learned counsel for the respondent no. 3 relies upon the decision of the Hon’ble Apex Court in the case of Sangita Sinha Vs. Bhawana Bhardwaj and ors[4]. He submits that the Apex Court held that in the absence of any declaratory relief against cancellation of the suit agreement, a suit for specific performance would not be maintainable. He, therefore, submits that there would be no reason to interfere with the impugned order. Submissions on behalf of the respondent no. 2:
11. Learned counsel for respondent no. 2, i.e., the original owner who has executed the suit agreement, adopts the submissions made on behalf of learned counsel for respondent no. 3. He, thus, on the same grounds, supports the impugned order. Analysis and conclusions:
12. I have perused the papers of the appeal and examined the rival submissions made on behalf of the parties. Defendant no. 2 is the holder of the plot in question who had executed an agreement on 11th September 2002 in favour of the plaintiff. Defendant no. 3 is the purchaser from defendant no. 2 by way of a registered sale deed dated 11th September 2003. It is the plaintiff’s contention that during the subsistence of the agreement in favour of the plaintiff, defendant no. 2 illegally executed the registered sale deed in favour of defendant no. 3. Defendant no. 1 was the chairman of the society at the relevant time, where the plot in question is situated. Defendant no. 3 is the son of defendant no. 1. Hence, defendant no. 1 is made a party to the suit.
13. Defendant no. 1 filed a written statement but has not led any evidence. Defendant no. 2 contended that the suit agreement could not be specifically performed as the society had refused permission. Hence, he contended that by issuing a letter dated 22nd February 2003, he terminated the agreement and returned the earnest amount. The plaintiff has relied upon a notice dated 30th July 2004 calling upon defendant no. 2 to perform the suit agreement. To this notice, defendant no. 2 replied on 7th August 2004 and reiterated his contentions regarding termination of the agreement in favour of the plaintiff. Thus, defendant nos.. 2 and 3 contended that the agreement in favour of the plaintiff stood cancelled and the sale deed executed in favour of defendant no. 3 is a valid document. So far as the plaintiff’s contentions are concerned, the plaintiff’s case is that during the subsistence of his agreement, defendant no. 2 illegally executed a sale deed in favour of defendant NO. 3. Hence, the suit for specific performance of the contract and for a declaration that the sale deed in favour of defendant no. 3 is illegal and not binding upon the plaintiff.
14. In view of these rival pleadings, the Trial Court framed the following issues: “Issues Findings 1] Whether agreement dt. 11.9.2002 executed by defendant No. 2 in respect of suit property in favour of plaintiff is legal or illegal ? In affirmative. 2] Does the plaintiff prove that he was and he is always ready to perform part of his contract? In affirmative. 3] Do defendant No. 2 prove that due to valid legal grounds, they could not In negative. perform their part of contract? 4] Does the defendant No. 1 prove that transaction entered into by defendant No. 2 is not binding on defendant No. 1? In negative. 5] Does the defendant No. 3 prove that he In negative. is a bona fide purchaser In negative. for value without notice? 6] Whether suit is bad for non joinder of In negative. Parties ?
7) Whether this court has jurisdiction In affirmative. to try and decide this suit?
8) Is suit barred by limitation? In negative. 9] Whether sale deed dt. 30.10.2003 executed by defendant No. 2 in favour of In negative. defendant No. 5 is legal or illegal? 10] Is plaintiff entitled to reliefs of specific performance of contract? In affirmative. 11] Is plaintiff entitled to reliefs of declaration and permanent injunction In affirmative. as prayed? 12] To what relief, if any, is the plaintiff entitled ? Redundant 13] Are defendants entitled to get compensatory In negative. costs from the plaintiffs 14) What order and decree ? As per final order.”
15. In view of the issues framed, both parties led substantial evidence. The letters exchanged between the parties are produced on record. The parties led evidence in support of their rival contentions. All the relevant evidence is substantially discussed by the Trial Court and findings are recorded in favour of the plaintiff. The Trial Court decreed the suit by declaring that the sale deed executed in favour of defendant no. 3 is illegal and thus, stands cancelled. Thus, defendant nos. 2 and 3 were directed to execute the sale deed in favour of the plaintiff. Defendant no. 2 was held entitled to receive the balance consideration amount. Thus, all three defendants were restrained from changing the nature of the suit property or transferring the same to any third party. Being aggrieved by this decree, defendant nos. 2 and 3 filed separate appeals. Both these appeals are decided by a common judgment. The Appellate Court, in paragraph 24 of the judgment, held that the Trial Court did not frame proper issues. The Appellate Court framed the following issues: "1. Whether suit is bad for mis-joinder of defendant No.1 as party to the suit?
2. Whether agreement to sale between plaintiff and defendant No.2 dated 11.9.2002 is in violation of certain provisions of M.R.T. P. Act?
3. Do defendants No.1 to 3 prove that due to material alternations in the agreement dated 11.9.2002 by plaintiff said agreement to sale cannot be enforced by law?
4. Does defendant No.1 prove that he by giving reply dated 7.8.2004 to the notice of plaintiff dated 30.7.2004 and refunding earnest amount accepted at the time of agreement to sale cancelled the agreement to sale dated 11.9.2.002?
5. Do the defendants prove that Mitra Pariwar Society after cancelling membership of defendant No.2 took the suit plot in its possession and thereafter legally transferred it to defendant No.3?"
16. So far as the proposed issue no. 1 framed by the Appellate Court with regard to misjoinder of defendant no. 1 as a party to the suit is concerned, the Trial Court had also framed an issue on whether the suit was bad for nonjoinder of the parties. So far as the proposed issue no. 2 is concerned, the same is with regard to the validity of the suit agreement with reference to the provisions of the Maharashtra Regional and Town Planning Act, 1966 (‘MRTP Act’). Though the Trial Court did not specifically frame the said issue, both parties have led evidence and argued the point with reference to the provisions of the MRTP Act. The proposed issue no. 3 is on the point of material alterations in the suit agreement by the plaintiff, and whether the agreement can be enforced in law. The Trial Court had framed the issue no. 1 on whether the agreement in favour of the plaintiff is a legal document. The proposed issue no. 4 cast a burden upon defendant no. 2 (wrongly typed as No. 1 in the order) to prove whether, by giving a reply to the plaintiff’s notice, the earnest amount was refunded and the agreement was cancelled. The proposed issue no. 5 concerns the cancellation of membership of defendant no. 2 and transfer of the membership and possession to defendant no. 3.
17. The issues framed by the Trial Court, based on the rival pleadings of the parties pertain to the validity of the suit agreement, legality of the sale deed executed in favour of defendant no. 3, including all other issues on the plaintiff’s entitlement to seek specific performance, all the issues proposed by the Appellate Court are already framed by the Trial Court and substantive findings are recorded on the same. It was nobody’s contention that the parties were unable to lead evidence on any particular issue that arose in the suit. The Appellate Court has not recorded any finding on the requirement to direct the parties to lead the evidence afresh.
18. So far as the Appellate Court’s reasoning for resettling the issues is concerned, learned counsel for the appellant is right in submitting that in view of Rule 24 of Order XLI of CPC, the Appellate Court should have resettled the issues and determined the suit finally. I find substance in the arguments raised on behalf of the appellant that there was no requirement for the Appellate Court to remand the matter to the Trial Court. In view of the provisions of Rule 23 to Rule 25, the Appellate Court, being the last fact-finding court, is empowered to resettle the issues and re-examine the evidence on record for final determination of the suit. Resettlement of the issues cannot be a ground for remanding the suit to the Trial Court for deciding it afresh. The Appellate Court has not recorded any findings for reversing the specific findings recorded by the Trial Court after examining the substantial evidence on record. In these facts, the legal principles settled by the Apex Court in the case of Shivkumar clearly support the arguments raised on behalf of the appellant. The Apex Court, in the decision of Shivkumar, has laid down the legal principles of the requirement to remand the matter by the Appellate Court. The legal principles settled by the Apex Court in paragraph 26 read as under: “26.[1] The procedure relating to appeals from original decrees (usually referred to as 'regular first appeal') is provided in Order XLI of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in Appellate Court etc. are contained in Rules 16 to 29 under the sub-heading 'Procedure on hearing'. For their relevance, we may take note of the provisions contained in Rules 23, 23A, 24 and 25 of Order XLI Code of Civil Procedure as follows: “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, with directions to readmit 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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has Under
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.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where 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.”
26.2. Rule 23A came to be inserted in Order XLI Code of Civil Procedure by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although Under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Some of the High Courts had made similar provisions by way of their respective amendments. Insertion of Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary.
26.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI 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, 23A and 24 of Order XLI 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 XLI Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial 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. 26.4.1. The decision cited by the learned Counsel for the Appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the Appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the Plaintiffs were the owners of the land in dispute on which trespass was committed by the Respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the Appellant. Such part of the decree of the Trial Court was not challenged by the Defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the Appellant for allotment of an alternative land, the Appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the Appellant but proceeded to dismiss the entire suit with the finding that the Plaintiff-Appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the Appellant was not able to prove his title to the suit land due to non-examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the Appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the Appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case.
26.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial 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 Plaintiff-Appellants 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.”
19. This court, in the case of Barku Pundlik Patil, has followed the legal principles settled by the Hon’ble Apex Court in the case of Shivkumar and set aside the court's order of remand and restored the first appeal to the file. This court, in the case of Barku Pundlik Patil, has laid down the parameters for the purpose of determining whether the remand under Order XLI Rule 23A by the Appellate Court can be termed as lawful. The relevant principles settled by this court in the case of Barku Pundlik Patil read as under: “11. Applying the law as stipulated above to the instant case, following facts are relevant to determine whether remand under Order 41 Rule 23-A by the appellate court is lawful:- [i] No application was made before the Appellate Court by the Plaintiffs/Appellants to adduce further evidence. [ii] Defendants/Respondents have also not made a prayer of remand for re-trial. Defendants have not challenged the Judgment of the Trial Court. [iii] Remand would prolong the litigation more so where the Plaintiffs/Appellants have not prayed to lead further evidence. The Appellate Court cannot insist upon the Plaintiffs or Defendants to lead evidence. [iv] The Appellate Court held that the Trial Court has not purportedly decided the suit by meticulously going through the evidence and has directed the whole suit to be decided afresh. However, just because the trial court has erred in appreciating evidence, the Appellate Court cannot remand the case for reconsideration, when it can itself enter into findings of fact by appreciation of evidence, which is already on record.”
20. This court takes a similar view in the case of Balkrishna Dattatraya Butte. This Court held that an order of remand can never be passed as a matter of routine or for mere asking. This Court held that once the Trial Court has examined the case on the basis of available evidence and reached to a conclusion, unless a clear case for remand is made out, the Appellate Court cannot remand the matter as a matter of routine. This Court further held that the merits of the findings recorded by the Trial Court are required to be seen by the Appellate Court, and it can be reversed or set aside only if the Appellate Court finds that a retrial is necessary. This Court has further referred to the legal position in view of the amendment to Order XLI Rule 23 of the CPC, which empowers the Appellate Court to remand the matter where the decree is challenged in appeal, having been passed in a suit otherwise in a preliminary point, and the decree is reversed in appeal, retrial is considered necessary. Hence, in view of Rule 23A, this Court held that the Trial Court’s findings need to be examined and by recording reasons, the Appellate Court may reverse and direct the retrial if considered necessary.
21. In the facts of the present case and substantial evidence led by both parties, the Appellate Court has failed to reconsider and re-examine the evidence on record before concluding that the remand is necessary. The reasons recorded by the Appellate Court in paragraph 24 regarding settlement of issues cannot be accepted as a valid ground for remand for deciding the suit afresh by entirely reversing the Trial Court’s findings. Thus, in the facts of the present case, in view of the well-settled legal principles, the impugned judgment and order would not be sustainable.
22. The decision of the Apex Court in the case of Sangita Sinha relied upon by learned counsel for the respondent no. 3 would not be of any assistance to support the order of remand. The legal arguments on the maintainability of the suit could have been considered by the Appellate Court. For deciding the legal issue on maintainability of the suit, there cannot be an order of a de novo trial.
23. When there is sufficient evidence on record, in view of Rule 24 of Order XLI of the CPC, the First Appellate Court should first examine the evidence on record and, if necessary, even resettle the issues and record findings of facts. The First Appellate Court is the last fact-finding court; hence, if the First Appellate Court finds an order of remand necessary, it has to record reasons for remanding the suit to the trial court. Without exercising the powers under Rule 24 of Order XLI of the CPC, an Order of remand would not be sustainable. Thus, before ordering remand, the First Appellate Court should record reasons why the procedure contemplated under Rule 24 of Order XLI of the CPC cannot be followed.
24. Hence, for the reasons recorded above, the impugned judgment and order would not be tenable, and the appeals need to be restored to the file for decision on merits in accordance with law. For the reasons recorded above, this appeal is allowed by passing the following order. O R D E R
I. Judgment and Order dated 20th June 2016, passed by the District Judge-2, Kolhapur, in Regular Civil Appeal Nos. 384 of 2013 and Regular Civil Appeal No. 385 of 2013 are quashed and set aside.
II. Regular Civil Appeal Nos. 384 of 2013 and
Regular Civil Appeal No. 385 of 2013 are restored to the file, to be decided on merits in accordance with law, by the concerned District Judge at Kolhapur.
III. The parties shall appear before the concerned
District Judge at Kolhapur, on 6th October 2025. The concerned District Judge shall fix the schedule for the hearing of the appeals, as convenient to the Court.
IV. It is clarified that no fresh notice to the parties would be necessary.
V. All the rival contentions of the parties on the merits of the appeals are kept open.
VI. The parties shall cooperate for the early disposal of the Appeals before the District Court and shall not seek any unnecessary adjournments.
25. The Appeal is allowed in the aforesaid terms. [GAURI GODSE, J.] MASHAL