2016 (12) TMI 1786 - HC - Indian Laws

Possession of suit property - can the case be finally decided on all material points in controversy without an order of remand? - HELD THAT - It would have been appreciable if the first appellate Court had engaged in an investigation on the alleged title of the plaintiff at least to the extent she had discharged her burden of proving the same before dealing with the aspect of non cross-examination of DW-1 by the plaintiff or of PW-3 by the defendant. This is the minimum and this is not appeared to have been done. All other principles requiring consideration for remanding a case follows this first step. Inasmuch as this endeavour is yet to be attempted the impugned order of remand cannot be sustained. The first appellate court is directed to hear the matter afresh frame appropriate points and ascertain if the case can be decided finally with the available materials and if for reasons that it is required to record it finds a need to remand the matter consistent with the law on the subject it may so do it.

Summary

Issues Involved:
1. Validity of the remand order by the First Appellate Court.
2. Plaintiff's title to the suit property.
3. Impact of non-cross-examination of witnesses.
4. Effect of the plaintiff's sale of the property pendente lite.
5. Principles governing remand by appellate courts.

Detailed Analysis:

Validity of the Remand Order by the First Appellate Court:
The primary issue was whether the order of remand made by the First Appellate Court was sustainable. The appellate court remanded the matter back to the Trial Court, citing the need for substantial justice due to the non-cross-examination of key witnesses (DW-1 and PW-3). The High Court found that the appellate court should have first investigated the plaintiff's title to the property before addressing the issue of non-cross-examination. The remand was deemed inappropriate as it did not follow the principles governing remand, which should be sparingly used and only in exceptional cases.

Plaintiff's Title to the Suit Property:
The plaintiff claimed title based on a settlement deed executed by her husband in 1973. The defendant contested this, asserting that the plaintiff's husband and sons sold the property to him in 1998. The Trial Court initially dismissed the suit, focusing on the plaintiff's failure to cross-examine the defendant and the sale of the property pendente lite. The High Court emphasized that the Trial Court erred by not addressing the critical issue of the plaintiff's title and instead framed an issue concerning possession, which was irrelevant as the plaintiff admitted the defendant's possession.

Impact of Non-Cross-Examination of Witnesses:
The non-cross-examination of DW-1 (defendant) by the plaintiff was highlighted by the Trial Court as a significant factor in dismissing the suit. The High Court noted that the appellate court should have considered the plaintiff's counsel's failure to cross-examine as a lapse on the counsel's part, not the plaintiff's. The appellate court's decision to remand based on this failure was found to be unjustified without first addressing the plaintiff's title.

Effect of the Plaintiff's Sale of the Property Pendente Lite:
The Trial Court held that the plaintiff's sale of the property during the pendency of the suit made the suit infructuous. The High Court clarified that such a sale does not strip the plaintiff of the right to litigate. The doctrine of lis pendens ensures that any transfer during litigation is subject to the outcome of the suit, and the plaintiff retains the locus standi to continue the litigation.

Principles Governing Remand by Appellate Courts:
The High Court outlined the principles for remand:
1. An appellate court should ascertain if the suit was decided on a preliminary point and avoid remand if the case can be decided based on available evidence.
2. Remand should be an exception, not the rule, and should be used sparingly.
3. The appellate court must provide reasons for remand and explore if the case can be adjudicated under Order XLI Rule 24 CPC before considering remand.
4. Remand should not be for reconstructing a case but to prevent a failure of justice.

Conclusion:
The High Court allowed the appeal, directing the First Appellate Court to hear the matter afresh, frame appropriate points, and determine if the case could be decided with the available materials. The appellate court was instructed to dispose of the appeal within two months, emphasizing the need to avoid unnecessary remands that prolong litigation.