Full Text
HIGH COURT OF DELHI
NAV SHAKTI EDUCATIONAL SOCIETY ..... Petitioner
Through : Mr.Sanjeev Sindhwani, Senior Advocate with Ms.Vasundhra
Bhardwaj, Advocate.
Through : Mr.Rajinder Singh, Advocate for R-1.
Mr.I.S.Alag, Senior Advocate with Mr.Moinuddin Khan Advocate for
R-2.
JUDGMENT
1. The question involved in these proceedings is if the petition under Article 227 of the Constitution of India is maintainable or the petitioner ought to have filed a Second Appeal against the impugned order 22.03.2019 passed by the learned Additional District Judge – 09, Central District, Tis Hazari Courts, Delhi.
2. The brief facts which led to the filing of the petition are an application under Order IX Rule 13 CPC was filed by the respondent herein in a Civil Suit filed by the petitioner herein. On 20.10.2005 none appeared for the petitioner before the learned Trial Court though the 2019:DHC:4149 counsel for legal heirs of the defendant No.6 appeared and matter was adjourned to 08.02.2006. On 08.02.2006 none of the parties were present in the Court and the learned counsel for the respondent told the respondent since the matter has been transferred on 08.02.2006 to some other Court, hence court notice shall be served upon them by the concerned Court and they need not appear till such court notice is served. However, no court notice was ever served and the respondents were proceeded ex parte vide order dated 18.10.2011, hence, an application under Order IX Rule 13 CPC was moved.
3. The said application under Order IX Rule 13 CPC was though dismissed by the learned Trial Court, but the first appellate Court in appeal set aside the order of the learned Trial Court on the basis Reena Sadh vs Anjana Enterprises AIR 2008 SC 2054 and remanded the matter to the learned Trial Court.
4. The reasoning given in the impugned order read as under:-
5. In this petition, I need to answer two questions:– a) is the petition under Section 227 of the Constitution of India maintainable; and b) was the power of remand properly exercised.
6. Qua a) above, the learned senior counsel for the respondent has vehemently argued a petition under Article 227 of the Constitution of India is not maintainable and in fact a second appeal ought to have been filed. It is urged Order XLIII Rule (1) (u) CPC covers an order under Rule 23 or 23A or Order XLI remanding a case where an appeal would lie from the decree of the appellate Court. He also referred to Section 105(2) CPC which read:-
7. The learned senior counsel for the respondent then referred to Sita Ram Goel vs Sukhnandi Dayal & Others AIR 1972 SC 1612 where on a decision on an application under Order XXI Rule 2 CPC, an appeal was filed before the learned Additional District Judge and the matter was remanded; no appeal was filed by the decree holder against the order of remand passed by the learned District Judge and when the matter was taken to High Court, the High Court passed the following order:-
8. Further, the learned senior counsel for the respondent referred to decision of this Court in Rajinder Singh vs Pushpa Devi Bhagat & Another AIR 2004 Delhi 228 wherein the Court held:- “51…….the impugned order passed by the learned Additional District Judge is an order remanding the case to the learned Civil Judge for a decision on merits in accordance with law. An appeal from this order falls within the category of an appeal from an order as described in Order XLIII Rule 1(u) of the CPC. There was no dispute that had the learned Additional District Judge confirmed the decree, a second appeal could have been filed to this Court. Since the decree passed by the learned Civil Judge was not confirmed but was in fact set aside and the matter remanded for a decision in accordance with law, it would squarely be covered by the aforesaid provision of Order XLIII of the CPC. Reference in this context may also be made to Section 104(1)(i) of the CPC whereby an appeal is provided from any order made under the rules from which an appeal is expressly allowed.……”
9. Thus, it was argued by the learned senior counsel for the respondent since the time period for filing an appeal had expired, so a petition under Article 227 of the Constitution was filed, hence it be not entertained.
10. The learned senior counsel for the petitioner, however, submits no Second Appeal can be filed against the First Appeal from Order unless and until it is statutorily provided for. He argued the Delhi High Court Rules debars carrying such orders in second appeal.
11. It is the contention of the learned senior counsel for petitioner that second appeal would not lie from the impugned order as the second appeal lies under Section 100 CPC which deal with the appeals from the appellate decrees.
12. Heard.
13. Admittedly, an appeal against an order of dismissal of an application under Order IX Rule 13 CPC is not an appeal against a decree. Order XLIII Rule (1) (u) CPC notes:- “Order XLII Appeals from orders
1. An appeal shall be from the following orders under the provisions of section 104, namely:- (a)to (t) xxx (u)an order under Rule 23 or Rule 23A of Order XLI remanding a case where an appeal would lie from the decree of the Appellate Court; Xxxx” A bare perusal of the above provision would show an appeal would lie from an order under Rule 23, Rule 23A CPC of Order XLI CPC remanding a case only where an appeal would lie from the decree of the learned Appellate Court. This provision is though different from the other provisions of Order XLI Rule 1 CPC but is in sync with Section 100 CPC dealing with Second Appeal.
14. Rajinder Singh (supra) so relied upon by the respondent is a case where an appeal was filed against the decree, hence the Court held in an order of remand by the Appellate Court, only an appeal would lie which infact is the correct position. Moreso, Section 115(2) CPC says notwithstanding anything contained in sub–section (1) wherein any party is aggrieved by an order of remand from which an appeal lies, does not appeal, he shall be precluded from disputing its correctness.
15. The case of Sita Ram Goel (supra) can also be distinguished as in the said decision, an execution was filed by the landlord wherein an objection under Section 47(2) CPC were filed by the tenant / appellant. It is noted in the decision itself that under Section 47(2) CPC, the Court has power to treat such proceedings as a suit. Now, if that is so, then the judgment passed in dismissing the objections under Section 47(2) CPC would per se be treated as a decree, hence, Order XLIII Rule (1) (u) CPC would apply and an appeal would only lie against such an order of remand of proceedings under Section 47(2) CPC.
16. However, the proceedings before this Court culminated on an application under Order IX Rule 13 CPC which when decided would not finally adjudicate the rights and liabilities of the parties and hence such order cannot be termed as a decree. It thus distinguishes an order of the Appellate Court while dismissing an application under Order IX Rule 13 CPC from an order dismissing the objections under Section 47(2) CPC. Since the impugned order passed by leaned First Appellate Court per se is not a decree; therefore the order passed by the learned Appellate Court cannot be termed as a decree and hence, such an order would not be an appealable order.
17. It is also important to note under Section 104(2) CPC, “no appeal shall lie from any order passed in appeal under this section”. In other words, the CPC itself applies an embargo against filing an appeal against an order passed by the Appellate Court under S. 104 and by extension Order 43 CPC. As such, an appeal under Order 43 Rule 1(u) CPC cannot be maintained against an order passed in an appeal filed under Order 43 Rule 1(d) CPC, pursuant to the bar contained in Section 104 (2) CPC. Thus, the ingredients of Order 43 Rule 1(u) CPC having not been fulfilled, no appeal is maintainable under the said provision.
18. Further, the said argument of respondent can also not be sustained for other reasons, namely:-
(i) It is only against an order of remand passed by an Appellate
Court sitting in appeal against a decree passed by the Trial Court i.e. in an appeal filed under provisions of S. 96 of the CPC, would provisions of Order 43 Rule 1(u) of the CPC be applicable. This is apparent from the plain reading of this provision. The provisions of Order 43 Rule 1(u) of the CPC would not apply in case of a remand made by the Appellate Court dealing with an appeal against an order passed by the Ld. Trial Court, which is not a decree;
(ii) The statute provides for an appeal only in case of an order passed under provisions of Order 41 Rule 23 or 23-A CPC and not generally; and Order 41 Rule 23 or 23-A CPC contemplates remand by the Appellate Court adjudicating an appeal filed under S. 96 of CPC against a decree passed by the Ld. Trial Court; and (iii)The use of the phrase „decree of the Appellate Court‟ signifies that the judgment of the Appellate Court is a final judgment determining rights of parties, as would be the case only in case of a judgment deciding an appeal filed under S. 96 of the CPC against the decree of the Trial Court. The statutory requirement that an appeal should be available in law against the decree of the Appellate Court, further signifies that the judgment of the Trial Court should be a decree, since it is only in such a case, that the aggrieved party has a right of further appeal (under provisions of S. 100 of CPC). CPC does not otherwise provide for a second appeal against general orders.
19. The respondent has further sought to argue that the provisions of Order 41 CPC are applicable to appeals filed under Order 43 by virtue of provisions of Order 43 Rule 2 CPC and therefore, reference to an order of remand under Order 41 Rule 23 or 23-A CPC in provisions of Order 43 Rule 1(u) CPC may be read to include an order of remand made in an appeal under Order 43 CPC, such as in case of the impugned order.
20. Order 43 Rule 2 reads as follows: “Procedure – the Rules of Order XLI shall apply, so far as may be, to the appeals from orders”. Clearly, the provisions of Order 41 CPC are made applicable only as regards the procedure to be followed while dealing with an appeal under Order 43 CPC; and does not give substantive rights to parties, including the right of appeal.
21. The right of appeal against an order passed under Order 41 Rule 23 or 23-A CPC is granted under Order 43 CPC and not under Order 41 CPC. Therefore, even if provisions of Order 41 CPC are made applicable to appeals under Order 43 CPC, merely the power to remand the matter (akin to Order 41 Rule 23 CPC) gets extended to the Appellate Court but in the absence of a specific provision, the right of an aggrieved party to file an appeal against such an order is not extended by the Statute. Provisions of Order 43 Rule 1(u) CPC are clear and do not allow for an expanded reading. It is settled law that a right of appeal is a statutory right and does not exist as a general common law right, unless specifically provided. Therefore, in the absence of a specific statutory provision, the right to appeal, as claimed by the Respondent cannot be allowed to an aggrieved party.
22. Now, the second limb of argument is if CM (M) can be filed or a Civil Revision Petition should have been filed under Section 115 CPC. Prima facie the remedy under Section 115 CPC or Civil Revision would not be available as Section 115 can be invoked only in respect of those cases which have been decided. The case is decided only when there is adjudication on the rights and liabilities of the parties. Since in the present case, there was no such adjudication as the learned First Appellate Court has merely remanded the matter thus the matter would not fall within the expression cases which has been decided. Hence this petition would only lie.
23. Nevertheless, the learned senior counsel for the petitioner has quoted various decisions to show where this Court may also convert a petition under Article 227 of the Constitution of India to revision/writ/ appeal etc. In Shaqafath Ali Khan and Others vs Imdad Jah Bhahadur and Others JT2009 (3) SC 652 the Supreme Court held:-
24. Further in Sanjay Mehra vs Sunil Malhotra 2010 (170) DLT 797 this Court held:- "28.In the above view of the matter, this Court could well entertain the present petition under Article 227 of the Constitution as a revision petition under the proviso to Section 25 B (8) of the DRCA. Consequently, there is no merit in the preliminary objection as to the maintainability of the petition. It is accordingly overruled. Submissions of the Petitioners/landlords on merits. It is accordingly overruled."
25. In Tara Devi vs Prahlad Rai 2014(7) AD (Delhi) 323 again this Court noted:- "2.Certain facts are required to be stated and understood before dealing with this petition, and which are stated hereinafter, but at the outset, at the request of the counsel for the petitioner, this petition under Section 115 CPC is converted into a petition under Article 227 of the Constitution of India, and which I am entitled to do so because heading of the petition is immaterial and substance has to be seen vide judgment of the Supreme Court in the case of Municipal Corporation of Delhi Vs. R.P.Khaitan & Anr. 79 (1999) DLT 555 (SC)."
26. Similarly in Bimla vs Anil Kumar Arora MANU/DE/1991/2014 it has been held as under:-
27. Admittedly the limitation to file Civil Revision is 90 days, whereas this petition was filed within 42 days. The stamping in CM(M) as also to Civil Revision is almost same. Further, in this case too the petitioner alleges the first Appellate Court had failed to exercise the jurisdiction so vested in it and have rather acted in the exercise of its jurisdiction illegally or with material irregularity, hence there can be no issues, if this petition may also be treated as Civil Revision.
28. Coming to question (b) supra, admittedly, power of remand cannot be exercised in a casual manner and it is only when twin conditions viz a) the Trial Court had disposed of matter on a preliminary issue; and b) where the decree is reversed in appeal and retrial is considered necessary; are satisfied, then the appellate Court should exercise the power of remand and that too in exceptional cases as was held in P.Purshottam Reddy vs Pratap Steels Limited 2002 AIR (SC) 771 wherein the Court categorically noted:-
29. Further even in Municipal Corporation, Hyderabad vs Sunder Singh 2008 AIR (SC) 2579 the Supreme Court held:-
30. Now coming to the facts, a bare perusal of the impugned order passed by the learned appellate Court do not show as to if the appellate court has even examined the facts to come to a conclusion that an order of the learned Trial court may not be reversed, but rather, it simply say since Rule 6 of Chapter 13 of the Delhi High Court Rules and judgments of the Supreme Court in Reena Sadh (supra) and Ramgulam (supra) were not considered; be now considered and a fresh order be passed. This is not the spirit of the power of remand as enumerated in CPC. The learned appellate Court ought to have applied its mind to the facts of the case to come to a prima facie conclusion that an order of the learned Trial Court should fail for non compliance of Rule 6 of Chapter 13 of the Delhi High Court Rules and/or both decisions of the Supreme Court referred to above. Even the operative part of the impugned judgment does not show any application of mind in this case and hence the order of remand passed by the learned appellate court is set aside. The learned appellate Court shall look into the matter afresh in the light of above. The petition is disposed of. No order as to costs.
31. Both the parties to appear before the learned First Appellate Court /Successor Court for directions on 05.09.2019.
32. Copy of this order be sent to the learned First Appellate Court / Successor Court forthwith.
YOGESH KHANNA, J. AUGUST 26, 2018 M