LAW FOR ALL

Remand to fresh trial = we are inclined to allow the appeal and while setting aside of the impugned order restore the suit to its file and remand the case to the Trial Court for deciding the suit afresh on merits. 19) The need to remand the case is called for because we find that the High Court while dismissing the appellant's first appeal recorded a finding that since the appellant (plaintiff) failed to prove his ownership over the suit land inasmuch as the plaintiff did not examine his vendor to prove his sale deed, the Trial Court was not justified in decreeing the appellant’s suit and granting declaration of ownership in his favour in relation to the suit land. In other words, the High Court was of the view that it was obligatory upon the appellant (plaintiff) to prove his title by examining his vendor and since it was not done, the decree passed by the Trial Court in plaintiff's favour was not legally sustainable. This finding of the High Court, as mentioned above, resulted in dismissal of the appeal and the suit as well. 20) In our considered opinion, assuming that the High Court was right in its view, it should have given an opportunity to the appellant to prove his title by allowing him to adduce proper evidence in support of his case and for that, the High Court should have remanded the case to the Trial Court for retrial of the suit. It was more so because we find that the appellant suffered more damage to his case in prosecuting his own appeal. In the absence of any challenge laid by the defendants to the part of the decree passed in plaintiff’s favour by the Trial Court, the appellate Court virtually passed the order in respondents’ (defendants) favour in appellant’s appeal. 21) In other words, the High Court having held that the plaintiff was not able to prove his title to the land in the suit due to non-examination of his vendor, all that the High Court, in such circumstances, should have done was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his case (title to the land) and adduce proper evidence in addition to what he had already adduced. This, the High Court could do by taking recourse to powers under Order 41 Rule 23A of the CPC. 22) Since we are inclined to remand the case by taking recourse to the powers available under Order 41 Rule 23A CPC, it is not considered necessary to examine any other question arising in the case. 23) We are, therefore, of the considered opinion that instead of now remanding the case to the first Appellate Court, it would be just and proper to remand the case to the Trial Court to retry the suit on merits by affording an opportunity to the parties to adduce additional evidence in support of their case. 24) The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The Trial Court shall then pass a judgment in accordance with law uninfluenced by any of our observations and of the High Court. 25) Parties to appear before the concerned Trial Court on 27.03.2017 to enable the Court to conclude the proceedings preferably within six months from the date of party’s appearance. 26) Before parting with the case, we consider it apposite to bring to the notice of Trial Court the provisions of Order 27 Rule 5B of the Code of Civil Procedure which reads as under. | | | |“5B. Duty of court in suits against the government or a public| | |officer to assist in arriving at a settlement.- (1) In every | | |suit or proceeding to which the government, or a public | | |officer acting in his official capacity, is a party, it shall| | |be the duty of the court to make, in the first instance, every| | |endeavour, where it is possible to do so consistently with the| | |nature and circumstances of the case, to assist the parties in| | |arriving at a settlement in respect of the subject matter of | | |the suit. | | | | | |(2) If, in any such suit or proceedings, at any stage, it | | |appears to the court that there is a reasonable possibility of| | |a settlement between the parties, the court may adjourn the | | |proceeding for such period as it thinks fit, to enable | | |attempts to be made to effect such a settlement. | | |(3) The power conferred under sub-rule (2) is in addition to | | |any other power of the court to adjourn proceedings.” | | 27) Since we find that the case at hand is against the State Government and local bodies, it is the duty of the Court to make, in the first instance, every endeavor to assist the parties to settle in respect of subject matter of the suit and, if for any reason, settlement is not arrived at then proceed to decide the suit on merits in accordance with law. 28) The appeal thus succeeds and is allowed. Impugned judgment as also the judgment and decree of the Trial Court are set aside. The Trial Court is directed to decide the suit keeping in view the observations made above.