Case Note & Summary
The present judgment before the High Court of Judicature at Bombay, Bench at Aurangabad, dealt with four appeals from orders arising out of two civil suits concerning agricultural land and a house. The parties were related family members; the suits involved claims of ownership, partition, separate possession, mesne profits, declaration as to legality of divorce, and permanent injunction. The underlying litigation began when Kalawatibai filed Regular Civil Suit No.322 of 2005 for declaration of ownership and permanent injunction, while Dwarkabai filed Regular Civil Suit No.95 of 2005 for partition, separate possession, mesne profits and declaration that the divorce obtained by deceased Babasaheb from Kalawatibai was legal. Dwarkabai expired during pendency and original defendant No.1 in her suit was transposed as plaintiff. Both suits were tried before the Joint Civil Judge, Junior Division, Ashti, District Beed and were disposed of by separate judgments on 31.12.2014. In RCS No.322 of 2005, Kalawati and Ramdas were declared owners of undivided one-fourth share each in the suit land, and defendant Shantaram was restrained from disturbing possession. In RCS No.95 of 2005, the transposed plaintiff along with defendant Nos.3 to 5 were declared owners of one-fourth share each in the suit land and house, with partition directed through Collector precept for agricultural land and Court Commissioner for the house. Defendant Shantaram challenged both decrees by filing Regular Civil Appeal No.22 of 2015 and No.21 of 2015. The first appellate court, District Judge-8, Beed, by separate judgments dated 14.12.2018, remanded both suits to the trial court with directions to allow defendant Shantaram to amend his pleadings and adduce evidence, and to frame appropriate issues thereafter. These remand orders were challenged in the four appeals from orders before the High Court. The appellants contended that the first appellate court erred in remanding the suits because there was no prayer for remand in the appeal memorandum and no case was made out under Order XLI Rules 23, 23-A or 25 of the Code of Civil Procedure, 1908. They argued that defendant Shantaram had earlier declined to lead evidence by filing a pursis, had not provided particulars of alleged tenancy, and had made no application to amend during the nine years the matter was pending. They relied on Syeda Rahimunnisa v. Malan Bi (Dead) by Legal Representatives, (2016) 10 SCC 315 to argue that remand cannot be ordered absent specific pleading. They further argued that amendment under Order VI Rule 17 CPC could not be allowed without satisfying strict conditions, and that mere mutation entries did not establish tenancy. The respondent, defendant Shantaram, argued that his written statement contained basic pleadings regarding customary divorce, marriage with Dwarkabai, and induction as tenant on batai basis by deceased Babasaheb, and therefore the trial court ought to have framed an issue on tenancy and allowed evidence. He relied on Shri Ajit Gaitonde v. Smt. Ezilda Emiliana Cristina Pinto, 2009 (3) ALL MR 838. The High Court heard the parties and reserved judgment on 27.01.2021. The text provided ends during the respondent's submissions and does not include the court's final analysis or operative order, so the final decision on the appeals is not available in the given extract.
Headnote
A) Civil Procedure - Remand - Order XLI Rules 23, 23-A, 25 Code of Civil Procedure, 1908 - The first appellate court remanded both suits to trial court with directions to allow amendment of written statement and fresh evidence after allowing appeals against decrees; appellants argued remand was impermissible without specific prayer and without making out case under these rules, relying on Syeda Rahimunnisa v. Malan Bi (Dead) by Legal Representatives, (2016) 10 SCC 315; the provided extract does not record the final holding. (Paras 4-7)
B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 Code of Civil Procedure, 1908 - The first appellate court ordered that defendant Shantaram be allowed to amend his pleadings and adduce evidence regarding his alleged tenancy over suit land; appellants contended that defendant had earlier filed pursis declining evidence and had not given particulars of tenancy, so requirements of amendment were not satisfied; respondent submitted that written statement contained basic pleadings including customary divorce, marriage, and induction on batai basis, warranting framing of issue; final ruling not contained in available text. (Paras 6-9)
Issue of Consideration
Whether the first appellate court was justified in remanding the suits to trial court for amendment of pleadings and fresh evidence without a specific prayer for remand and without satisfying conditions under Order XLI Rules 23, 23-A or 25 CPC; and whether amendment of written statement under Order VI Rule 17 CPC was permissible at appellate stage.
Law Points
- Order VI Rule 17 CPC amendment requirements
- Order XLI Rules 23
- 23-A
- 25 CPC remand conditions
- strictness of amendment rules
- necessity of pleading for remand
- framing of issues based on written statement pleadings
Case Details
2021 LawText (BOM) (02) 2
Appeal from Order No.12/2019 with Civil Application No.2775/2019; Appeal from Order No.13/2019 with Civil Application No.2798/2019; Appeal from Order No.22/2019 with Civil Application No.3754/2019; Appeal from Order No.23/2019 with Civil Application No.3755/2019
Mr. R.S. Wani, Mr. G.R. Syed, Mr. H.V. Tungar
Ramdas s/o Rangnath Pokale, Narmada w/o Trimbak Kokane, Lochanabai w/o Tukaram Dhas, Kalawatibai w/o Babasaheb Pokale
Kalawati w/o Babasaheb Pokale, Shantaram s/o Pandharinath Tawale, Ramdas s/o Rangnath Pokale, Narmada w/o Trimbak Kokane, Lochanabai w/o Tukaram Dhas
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Nature of Litigation
Appeals from orders challenging remand orders passed by first appellate court in regular civil appeals arising from two civil suits involving declaration of ownership, partition, separate possession, mesne profits, and permanent injunction over agricultural land and house.
Remedy Sought
Appellants sought to set aside the judgments and orders of District Judge-8, Beed dated 14.12.2018 in Regular Civil Appeal Nos.21/2015 and 22/2015, which remanded the suits to trial court with directions to allow defendant Shantaram to amend pleadings and adduce fresh evidence.
Filing Reason
The first appellate court remanded both suits to the trial court to enable amendment of written statement and framing of issues regarding tenancy, despite appellants' contention that defendant Shantaram had earlier declined to lead evidence and no prayer for remand was made.
Previous Decisions
On 31.12.2014, the trial court decreed RCS No.322/2005 declaring Kalawati and Ramdas as owners of undivided 1/4th share each in suit land and restraining Shantaram from disturbing possession; and decreed RCS No.95/2005 declaring transposed plaintiff and defendant Nos.3 to 5 as owners of 1/4th share each in suit land and house, with partition directions. On 14.12.2018, District Judge-8, Beed in RCA Nos.21/2015 and 22/2015 set aside the decrees and remanded both suits to trial court for amendment and fresh evidence.
Issues
Whether the first appellate court was justified in remanding the suits to trial court under Order XLI Rules 23, 23-A or 25 CPC when no specific prayer for remand was made in the appeal memorandum.
Whether the first appellate court could allow amendment of written statement under Order VI Rule 17 CPC at appellate stage without sufficient reasons for the delay and in absence of a prior application by defendant Shantaram.
Whether the first appellate court erred in directing the trial court to frame issues and permit fresh evidence regarding tenancy of defendant Shantaram when he had earlier declined to lead evidence and filed a pursis.
Whether the written statement filed by defendant Shantaram contained sufficient basic pleadings on tenancy to warrant framing of an issue and remand.
Submissions/Arguments
Appellants argued that the first appellate court failed to consider that defendant Shantaram had contended in his written statement that deceased Babasaheb inducted him on batai basis but preferred not to lead evidence and simply filed a pursis; the court could not force him to lead evidence.
Appellants contended that no prayer for remand was made in the appeal memorandum and the first appellate court could not dilute the strict rules of amendment under Order VI Rule 17 CPC or remand under Order XLI Rules 23, 23-A or 25 CPC, relying on Syeda Rahimunnisa v. Malan Bi, (2016) 10 SCC 315.
Appellants submitted that defendant Shantaram had not provided necessary particulars of alleged tenancy in his written statement, had made no application to amend during the nine years two months twenty-six days the matter was pending, and mere mutation entries did not establish tenancy.
Respondent Shantaram argued that his written statement contained basic pleadings regarding customary divorce, marriage with Dwarkabai, induction as tenant on batai basis, and mutation, and therefore the trial court ought to have framed an issue on tenancy and allowed evidence; he relied on Shri Ajit Gaitonde v. Smt. Ezilda Emiliana Cristina Pinto, 2009 (3) ALL MR 838.
Judgment Excerpts
All these Appeals from orders are almost between the same parties and involve common point and, therefore, they are being heard together and proposed to dispose of by a common judgment.
Both the suits were tried before the Joint Civil Judge, Junior Division, Ashti, District Beed and they were disposed of by separate judgments by the same Judge on 31.12.2014.
Both the appeals were heard by learned District Judge-8, Beed and by separate judgments pronounced on 14.12.2018, both the suits were remanded to the trial court with directions to allow defendant – Shantaram to amend his pleadings and adduce evidence, if any in view of the observations made in the judgment.
Reliance has been placed on the decision in the case of Syeda Rahimunnisa Vs. Malan Bi (Dead) by Legal Representatives and another – (2016) 10 SCC 315., wherein it has been held that, - in absence of any pleading for remand before High Court or first appellate court, matter cannot be remanded to lower court...
Procedural History
Dwarkabai Babasaheb Pokale filed RCS No.95/2005 for partition, separate possession, mesne profits and declaration of legality of divorce; Kalawati filed RCS No.322/2005 for declaration of ownership and permanent injunction. Both suits were tried before Joint Civil Judge, Junior Division, Ashti and decided on 31.12.2014. Dwarkabai died during pendency, and original defendant No.1 in RCS No.95/2005 was transposed as plaintiff. Defendant Shantaram filed Regular Civil Appeal No.21/2015 against RCS No.95/2005 decree and Regular Civil Appeal No.22/2015 against RCS No.322/2005 decree. District Judge-8, Beed heard both appeals and by judgments dated 14.12.2018 remanded both suits to trial court with directions to allow amendment of pleadings and fresh evidence. The present four appeals from order were filed challenging those remand orders, with civil applications for stay.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VI Rule 17, Order XLI Rules 23, 23-A, 25
