SECOND APPEAL 82/2001 on 12 December 2002

1. This is plaintiff's Second Appeal. The plaintiff had filed a suit for specific performance of contract. The trial Court initially decreed the suit. The defendant preferred an appeal. The lower appellate Court 2 S.A.No.753/10

vide its judgment dated 12.12.2002, though gave findings on various issues remanded the matter to the trial Court as the trial Court had not decided the issue of limitation, but while remanding the matter it did not exercise its powers U/o 41 Rule 25 of the C.P.C. but exercised the powers U/o 4l Rule 23 of the C.P.C. and directed the trial Court to decide the suit afresh. The matter was remanded back. After remand the trial Court only gave finding on the issue of limitation but did not give fresh findings on all other issues. The lower appellate Court in an appeal by the plaintiff did not discuss the evidence nor took into consideration the arguments advanced in respect of all issues and dealt the whole appeal only on the point of limitation on the ground that in an earlier round the appellate Court has already given the findings and the plaintiff had not challenged the said judgment. The plaintiff has assailed the said judgment in the present Second Appeal.

2. Mr.Sarvadnya, learned counsel for the appellant contended that the trial Court as well 3 S.A.No.753/10

as the lower appellate Court after remand of the matter failed to exercise their jurisdiction inasmuch as no finding has been given though the suit was remanded to the trial Court for decision afresh on merits. According to the learned counsels, once the matter was remanded back for deciding the suit afresh, the trial Court was duty bound to give findings on all issues afresh. The judgment of the lower appellate Court dated 12.12.2002 would not be an impediment for the trial Court to decide the suit afresh on all these issues. So also the lower appellate Court ought to have decided the appeal on its own merits on all the issues. For the said purpose the learned counsel relied on the judgment of the Apex Court in a case of "Gogula Gurumurthy and others Vs. Kurumeti Ayyappa" AIR 1974 Supreme Court 1702. According to the learned counsel, the said aspect involves substantial question of law.

3. Per contra, Mr.Soman, learned counsel for the defendant/present Respondent submits that when the lower appellate Court remanded the 4 S.A.No.753/10

matter vide its judgment and order dated 12.12.2002, it had in fact exercised his powers U/o 4l Rule 25 of the C.P.C. but inadvertently had mentioned that the trial Court shall decide both the suits afresh. In fact, clause 3 of the operative order shows that the evidence was directed to be led only on the point of limitation and when the appellate Court had decided and had given findings on all issues, the trial Court after remand was expected to give finding only on the point of limitation. According to the learned counsel, the matter does not involve any substantial question of law and even on merits, the appellant does not have any case. As an agreement of 1975 was sought to be enforced in the year 1996 and the suit on the face of it was barred by limitation.

4. In light of the above, the following substantial question of law arises :

"Whether the Courts below failed to exercise their jurisdiction in not giving the findings on various

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other issues involved in the lis after remand of the matter by the first Adhoc Additional District Judge,Aurangabad,videits judgmentandorderdated 12.12.2002.?"

5. Admit.

6. With the consent of the learned counsels for the respective parties, the appeal is taken up for final hearing.

7. With the assistance of the learned counsels, I have gone through the judgments delivered by the Courts below.

8. The operative part of the order of the Ist Adhoc District Judge, Aurangabad dated 12.12.2002, in RCA No.82/2001 is reproduced hereinbelow for ready reference :

allowed and both RCS Nos.39/1993 and

6 S.A.No.753/10

113/1997 are remanded to the trial Court.

2. On receipt of the R & P,the trial Court shall frame an issue on the point of limitation in RCS No.113/1997 and allow the parties to lead oral and documentary evidence.

3. On consideration of evidence led by the parties on the point of limitation, the trial Court shall decide both the suits afresh.

4. The parties are directed to appear before the trial Court on 15th January 2003.

12.12.2002

(P.B.Deshpande)

Ist Adhoc Additional

District Judge, Aurangabad."

9. The powers of remand are detailed under Rules 23 to 25 of Order 41 of the C.P.C. It takes into its fold various contingencies arising at the time of remand. If powers of remand U/o 41 Rule 25 are to be exercised then in that case, 7 S.A.No.753/10

the appellate Court remanding the matter has to retain the appeal with itself and the matter is remanded for finding on a particular issue only. If the matter is remanded by the appellate Court invoking its powers U/o 41 Rule 23 of the C.P.C. then the trial Court has to give its findings on all the issues. The perusal of the order of remand it is crystal clear that the appellate Court remanding the matter had not retained the appeal with itself, on the contrary had directed the trial Court to decide both the suits afresh. This shows that the lower appellate Court while remanding the matter has exercised his powers U/o 41 Rule 23 of the C.P.C. In that light of the matter, the trial Court was duty bound to give fresh findings on all the issues without being influenced by the observations of the District Court while remanding the matter.

10. So also, the appellate Court where the appeal was preferred was required to give findings on all the issues involved in the matter and could not have said that the appellate Court in earlier round has given the findings and is 8 S.A.No.753/10

bound by that.

11. In light of the above, the impugned judgment and decrees are quashed and set aside. The parties are relegated to the trial Court. The evidence has been led by both the parties as such there is no necessity of adducing any fresh evidence. The trial Court shall decide the suits bearing RCS No.113/97 and RCS No.39/93, after giving opportunity to the parties to argue the matter and shall give findings on all the issues involved in the matter afresh. The plaintiff and defendant in both the suits are represented by their counsels. They agree that the parties shall remain present before the trial Court on 10.01.2011. The trial Court shall thereafter by end of March 2011, decide both the suits i.e. RCS No.113/97 and RCS No.39/93.

12. The Second Appeal is disposed of with above observations. However, there shall be no 9 S.A.No.753/10

order as to costs.

(S.V.GANGAPURWALA,J.)

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