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TMI Blog2002 (1) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... s in supersession of an earlier contract dated 22.9.1986 which had lapsed. The vendor had agreed to obtain the requisite permission from the Urban Land Ceiling Authority before 30th June, 1988. The time so appointed could be extended by mutual consent of the parties. It was expressly agreed upon between the parties that it the requisite exemption or permission under the Urban Land (Ceiling and Regulation) Act, 1976 ('ULCRA', for short) was not forthcoming by 30th June, 1988 or within such extended period as may be mutually agreed to, then the contract was to become inoperative and unenforceable in which event the only obligation surviving on the vendor was to refund the earnest money. The vendor could return the earnest money with three months thereafter and if for any reason whatsoever the amount could not be so repaid then the amount was to carry interest to the rate of 12 per cent per annum. It appears that proceedings for declaration that the suit property was within the ceiling limits as appointed by the ULCRA were already pending before the Competent Authority at a point of time when the agreement was entered into between the parties. However the decision was not fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court proceeded to dispose of the appeal and the reasons which persuaded the High Court to make a remand, we may place on record two subsequent events which have occurred. Firstly, the Competent Authority (Urban Land Ceiling) had passed an order on 22.12.1989 declaring the land held by the appellants, including the property agreed to be sold, not to be in excess of ceiling limits which order though passed on 22.12.1989 was according to the appellants, communicated to them sometime in May 1992, that is, subsequent to the decision of the suit. In view of this order the need for obtaining clearance from the Competent Authority (Urban Land Ceiling) was obtained. Secondly, the respondent which is a duly incorporated company running an industry fell sick. Proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 were initiated and the Board of Industrial and Financial Reconstruction ('BIFR', for by its order dated 14.10.1996 declared the respondent-company as a sick company directing the promoters to furnish a proposal for revival of the company. During the course of hearing in this Court we were informed at the Bar that the order made by BIFR has been put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal in the manner and in the terms as already stated the Trial Court directed the pleas raised in such application also to be decided along with the suit. 6. We have heard the learned counsel for the parties and we are satisfied that the approach adopted by the High Court is unsustainable in law and therefore the order of remand cannot also be sustained. We briefly set out the reasons for forming such opinion in the succeeding paragraphs. 7. For the purpose of deciding the question whether or not time was the essence of the contract the appellant before the High Court relied on K.S. Vidyanandam and Ors. v. Vairavan - AIR1997SC1751 which is a two-Judge Bench decision and a few other decided cases. On behalf of the plaintiff-respondent reliance was placed on Chandnee Widya Vati Madden v. C.L. Katial and Ors. - [1964]2SCR495 , which is a three-Judge Bench decision. The High Court noticed the facts of both these decisions, and having also dealt with the law laid down therein felt inclined to decide the case in the light of the law laid down in Chandnee Widya Vati's case because the decision in Chandnee Widya Vati's case was as stated by the High Court, the earlier la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Constitution Bench. 9. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary Neither Rule 23 nor Rule 23A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A of CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to Clause (c) of Section 16 of the Specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendants. After having noticed the rule of pleadings as applicable to civil law that no amount of evidence can be looked into upon a plea which was never put toward , this court held. The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present in the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto . 12. In the case before us it was not the grievance raised by any of the parties before the High Court that there was any failure on the part of the trial court in discharging its obligation of framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific issue. It was nobody's case that any evidence, oral or documentary, was excluded or not allowed to be taken on record by the trial court. The very fact that the defendant-appellants have come up to this court la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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