It is well settled that the Court to which the case is remanded has to comply with the order of remand. Acting contrary to the order of remand is contrary to law. In almost similar circumstance, it was held by this Court in Rukhmanand v. Deenbandh, 1971 Jab LJ (SN) 159 that:
"It is settled law that when a suit is remanded for a decision afresh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order, or enter into questions falling outside its limit. There was, therefore, no jurisdiction in the learned trial Judge to allow an amendment of the pleadings which was outside the scope of the remand order."
Madhya Pradesh High Court
Smt. Ramabai And Ors. vs Harbilas And Ors. on 22 January, 1996
Equivalent citations: AIR 1997 MP 90, 1996 (0) MPLJ 1118
Bench: S Dwivedi
1. This appeal has been preferred by the defendants against the judgment and decree of the lower Appellate Court which has confirmed the judgment and decree of the trial Court.
2. Respondent-plaintiff Harbilas had filed a suit against deceased defendant Baboo Lal, the father of the appellants and respondent No. 2, for the restoration of possession of the two rooms and for mesne profits with the allegation that he had purchased the suit house from Baboo Lal. It was alleged that in the suit house at that relevant time one Devi Shankar was occupying two rooms. Later on those two rooms having been vacated by Devi Shankar, it was'alleged in the plaint that the two rooms were taken possession of by defendant Babu Lal. Since possession was not being handedover, hence the suit was filed.
3. The suit of the plaintiff-respondent was dismissed by the trial Court and, therefore, an appeal bearing No. 89-A/71 was preferred by the respondent-plaintiff. The plaintiff had later on moved an application in the appeal under Order 6, Rule 17, C.P.C. stating that since one Panat was in actual possession of the rooms and was not impleaded as defendant in the Suit, he be allowed amend the plaint. The prayer of the plaintiff-respondent was allowed and the judgment and decree of the trial Court was set aside remanding the case back to the trial Court to proceed in accordance with law after the suit was amended by the plaintiff, and to pass a fresh order after giving opportunity to the parties of leading evidence.
4. Consequent, to the order of remand, the plaintiff in the trial Court had amended his suit on 24-4-1973. After the consequential , amendment by the defendant-appellants, the learned trial Court had framed additional issues on 10-1-1974. On 16-2-1974, the case was fixed for the evidence of the parties for 29-4-1974. On the same date, i.e. 16-2-1974, itself the plaintiff had moved an application again under Order 6, Rule 17, C.P.C. seeking to amend his plaint and thereby to withdraw the earlier amendment. The application of the plaintiff-respondent was allowed by the trial Court on 9-7-1974. Curiously under the later amendment, his plaint was brought back to its original position by dropping defendant Panat from the array of defendants and the learned trial Court had thereafter proceeded to pass the fresh order and the suit of the respondent-plaintiff was decreed this time.
5. The appeal preferred by the defendant-appellants was also dismissed, hence this second appeal.
6. It is disturbing to note im this case, that earlier when the suit of the plaintiff-respondent was dismissed, he succeeded in getting the judgment and decree set aside by the appellate Court on the ground that the plaint was required to be amended for impleading one Panat as defendant. After the amendment of the plaint, but before the trial Court could proceed to record the further evidence in the light of remand order, the plaintiff-respondent again amended his plaint by dropping Panat from the array of defendants and brought the suit back to its original position which had existed before the order of remand was passed whereby the judgment and decree of the trial Court dismissing the suit was set aside.
7. The trial Court thereafter decreed the suit on the same evidence and in the same circumstances in which it was earlier dismissed by it.
8. The basic question, therefore, which is the substantial question of law involved in this appeal is whether it was open or was permissible to the trial Court to bye-pass the directions under the order of remand and the reason for which its earlier judgment and decree of dismissal of suit was set aside and then further to decree the suit on the same evidence. It would amount to allowing the premium to the plaintiff for his abusing the process of law. The plaintiff sought the setting aside of the judgment from the appellate Court by praying the amendment of plaint but he later on reamended the plaint by side tracking the order of remand. The trial Court ignoring the order of remand, without there being any further change in the evidence or circumstances, decreed the suit. The trial Court in this manner fell prey to the unwholly design of the plaintiff-respondent and the appellate Court also failed to consider this glaring illegality committed by the trial Court.
9. Under the order of remand passed by the appellate Court, the learned trial Court had the limited jurisdiction depending upon the terms of remand order. It could decide the suit only in view of the directions issued by the appellate Court.
10. The suit in its original position was dismissed by the trial Court. By the amendment, under the remand order, the position was changed, but by later amendment, the earlier amendment was withdrawn and the suit was again brought back to its original position in which it was earlier dismissed. But this time the judgment decreeing the suit was passed by the learned trial Court. Such course was not open to the trial Court. In doing so, it had proceeded against the direction of the superior Court issued under the order of remand.
It is well settled that the Court to which the case is remanded has to comply with the order of remand. Acting contrary to the order of remand is contrary to law. In almost similar circumstance, it was held by this Court in Rukhmanand v. Deenbandh, 1971 Jab LJ (SN) 159 that:
"It is settled law that when a suit is remanded for a decision afresh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order, or enter into questions falling outside its limit. There was, therefore, no jurisdiction in the learned trial Judge to allow an amendment of the pleadings which was outside the scope of the remand order."
The order of remand had to be followed in its true spirit. The plaintiff by playing hide and seek had succeeded in getting his suit decreed whereas the suit was dismissed under the original judgment passed by the trial Court, which was set aside by the appellate Court, while remanding the case. After the last amendment, since the suit had reverted to the same position, could it be decreed by the trial Court later by violating the remand order. The lower appellate Court also committed an apparent error of law in confirming the later judgment and decree of the trial Court.
11. For the above stated reasons, the appeal is allowed. The judgment and decree of the two Courts below are set aside. The matter shall go back to the trial Court with the direction to act according to the remand order passed earlier by the lower appellate Court on 2-11-71. The parties shall appeal before the trial Court on 12-3-96 and no further notice to them in this regard shall be required to be issued by the trial Court.
12. In the peculiar facts and circumstances, there shall be no order as to the costs.
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