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For the Petitioner: I. Alam, Advocate. For the Respondent: -------------


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Case No. SAO 7 of 2009

    Decided On, 30 May 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SUMAN SHYAM

    New India Assurance Co. Ltd. & Another Versus Jishu Bhattacharjee



Judgment Text

1. Heard Mr. R. Goswami, learned counsel appearing for the appellants. None appears for the respondent. The learned counsel for the respondent did not appear even yesterday when the matter was called up for hearing although the names of the counsel have been shown in the Cause List.

2. This Second Appeal from Orders (SAO) is directed against the judgment and order dated 22.08.2008 passed by the learned Additional District Judge No.1, Tinsukia in Money Appeal No.3/2007 whereby, the learned Lower Appellate Court had set aside the judgment and decree dated 19.01.2007 passed by the learned trial court in Money Suit No.29/1999 and remanded the matter for re-trial of the suit.

3. The facts of this case, in a nutshell, are that the respondent is the owner of a vehicle (Mini Bus) bearing No.AS-01/7729 which was insured with the appellant Insurance Company under Policy No.3153010503741. The insurance policy was valid during the period from 28.03.96 to 27.03.97. According to the respondent, his vehicle had met with an accident on 11.05.1996 and was badly damaged. An F.I.R. was lodged with the Tinsukia Police Station based on which, G.D. Entry No.288/96 was made and the matter was also informed to the appellant No.2. Accordingly, the appellant No.2 had deputed a surveyor to inspect the damaged vehicle. After the inspection was completed, the vehicle was removed by the police from the Thana premises and thereafter, the same was sent to a garage for repairing. According to the respondent, the total expenditure incurred in the repairing of the damaged vehicle was Rs.1,45,629.76 which included the cost of the spare parts, labour charges and other expenses. On completion of the repairing works, the respondent had requested the appellants to conduct a fresh inspection of the vehicle for settling the insurance claim but when the appellants failed to do so, the respondent as plaintiff had filed Money Suit No.29/1999 in the Court of learned Civil Judge, Tinsukia for recovery of Rs.1,45,629.76 and for other consequential reliefs. By the judgment and decree dated 19.01.2007, the suit filed by the respondent was decreed as prayed.

4. Aggrieved by the judgment and decree passed by the learned trial court, the appellants had preferred Money Appeal No.3/2007 which was disposed of by the learned Lower Appellate Court by setting aside the decree passed by the learned trial court and remanding the matter for re-trial of the suit.

5. By referring to the impugned judgment and order dated 22.08.2008, Mr. Goswami submits that there was no justifiable ground for the learned Lower Appellate Court to remand the matter for re-trial. Referring to the provisions of Order XLI Rule 24 CPC Mr. Goswami submits that there were sufficient materials available on record permitting the learned Lower Appellate Court to determine the case finally and as such there was no justifiable ground for ordering a de-novo trial of the suit. In support of his above argument Mr. Goswami has placed reliance on a decision of the Supreme Court rendered in the case of Syeda Rahimunnisa vs. Malan Bi (Dead) by Legal Representatives and another reported in (2016) 10 SCC 315 and another decision of this Court in the case of R. K. Tombi alias Tombisana Singh vs. R. K. Maipaksana Singh and others reported in 2002 (2) GLT 186.

6. I have considered the arguments advanced by the appellants’ counsel and have also gone through the materials available on record.

7. After a careful reading of the impugned judgment and order dated 22.08.2008, I find that the learned Lower Appellate Court has set aside the decree passed by the learned trial court and remanded the matter for re-trial by holding that the plaintiff should be given another opportunity to examine some of the witnesses for proper adjudication of the claim. It is, however, not clear as to whether the respondent/ plaintiff had made any such prayer before the lower appellate court. The impugned order dated 23.08.2008 also does not state any ground for declaring the decree dated 22.08.2008 as unsustainable in law. There is no mention in the impugned judgment and order dated 22.08.2008 as to the reason why re-trial or de novo trial of the Money Suit was deemed necessary. The sole ground on which the decree has been reversed is that the plaintiff should be given an opportunity to lead more evidence by examining the MVI, mechanic and owner of the garage. The operative part of the judgment and order dated 22.08.2008 is quoted herein for ready reference: “PW 2 Sri Lalbabu Rai and PW 3 Sri Basudeo Shah, drivers of the vehicle in question in their evidence before the court stated that one Tata vehicle dashed the vehicle from backside. But from the documents submitted by the plaintiff (PW 1), it spears that front portion of the vehicle was repaired. The plaintiff/respondent did not examine either the mechanic or the owner of the garage whom he paid the amount for repairing the vehicle after the accident. To ascertain the point whether the vehicle was examined by the M.V.I. after the accident and found the damage as mentioned in Ext.2, in my view, it was necessary to examine the MVI and to ascertain the point whether the plaintiff/ respondent incurred total expenses of Rs.1,45,629.76p. for repairing the damaged vehicle, in my view evidence of the mechanic and owner of the garage were essential. But the plaintiff/respondent failed to examine the said witnesses in course of trial. That being the position, I am of the opinion that it would be justified to give an opportunity to the plaintiff/ respondent to examine the said witnesses for proper adjudication of the claim.

For the reasons stated above, I find that it is a fit case to remand back to the trial court for fresh decision after examining the M.V.I., mechanic and owner of the garage. etc.

In the result, the appeal is partly allowed on contest. The impugned judgment and decree dated 19.1.07 passed by the learned court below is set aside. The suit is remanded back to the trial court for fresh decision after taking additional evidence from the plaintiff side. Defendants are at liberty to cross-examine the witnesses.”

8. Sections 101 and 102 of the Evidence Act, 1872 makes it clear that the overall burden of proof in every suit would lie upon the plaintiff and the said burden cannot be shifted to the defendants. Therefore, in every suit, it would be the duty of the plaintiff to establish his case by leading cogent evidence and if the plaintiff fails to lead sufficient evidence to prove his case, the suit itself would be liable to be dismissed.

9. In the present case, the learned trial court has decreed the suit filed by the respondent/ plaintiff for recovery of monitory claim. In an appeal preferred by the defendants for setting aside the decree, the appellate court would be called upon to examine the legality and validity of the decree, bearing in mind, the grounds urged by the appellant. While deciding the appeal, the first appellate court would, therefore, be required to examine the evidence available on record and record proper findings on the issues framed in the suit upon re-appreciation of evidence by following the procedure mentioned in Order XLI Rule 31 CPC. 10. It is also to be noted here-in that Order XLI Rule 24 CPC provides that where the evidence on record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after settling the issues, finally determine the suit notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds.

11. The procedure to be followed in case of remand by the appellate court on a preliminary issue is governed by Order XLI Rule 23 CPC. As per Rule 23-A of Order XLI, the same procedure is required to be followed when the decree of the trial court is reversed on a ground otherwise than on preliminary point and a retrial is considered necessary.

12. A plain reading of Order XLI Rule 24 CPC leaves no room for doubt that in case where issues have been properly framed and there are sufficient evidence on record permitting the first appellate court to finally determine the issues, an order of remand would not be called for. In such a case, it would be incumbent upon the first appellate court to appreciate the evidence available on record and decide the issues by recording independent findings.

13. As per Order XLI Rule 31 CPC, the appellate court is to formulate points of determination and give reasons for the decisions. When a decree passed by the trial court is reversed, the first appellate court is required to record reasons for the decision and to also state the relief to which the appellant is entitled to.

14. From a conjoint reading of Rules 23 A, 24 and 31 of Order XLI of the CPC, it is clear that a remand order for re-trial of the suit cannot be passed by the appellate court unless the decree under appeal is set aside. The appellate court must record proper reasons for setting aside a decree. That apart, re-trial of a suit can be ordered only when the same is considered necessary by the appellate court for reasons to be recorded. Therefore, re-trial or de novo trial of a suit is not to be inferred as an automatic consequence in every case where the decree of the trial court is reversed. The appellate court can order re-trail only if it is found that the procedure followed by the trial court leading to the decree was a flawed one thereby resulting into serious prejudice to the interest of the party making the complain.

15. In the case of Syeda Rahimunnisa (supra) the Supreme Court has held that where the parties to an appeal had never complained that the proceedings conducted before the trial court was unsatisfactory resulting in prejudice, remand cannot be made. Likewise, in the case of R. K. Tombi alias Tombisana Singh (supra) it has been held by this Court that before making an order of remand the Appellate Court has to see if the entire case can be disposed of on the basis of materials available on record. Observing that no attempt was made on that behalf by the Lower Appellate Court the judgement and order remanding the matter back to the trial court was set aside.

16. In the case in hand, it appears from the record that neither party had sought re-trail or denovo trial of the suit. There is also no valid reason recorded by the learned court below stating as to why the suit was required to be remanded to the trail court when sufficient evidence was available on record permitting the lower appellate court to determine the issues finally. It further appea

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rs that by the impugned Judgement and order, the learned court below had granted relief to the plaintiff by permitting him to adduce additional evidence in an appeal preferred by the defendants. Moreover, if the necessity to record additional evidence was the only consideration in the mind of the first appellate court, then also, in view of Order XLI Rule 27 CPC, an order of remand was not called for. Therefore, viewed from any angle, in the absence of any prayer made by the plaintiff seeking re-trail of the suit, the learned first appellate court, in my considered opinion, was not correct in remanding the suit for retrial. 17. For the reasons stated above, the judgment and order dated 22.08.2008 passed in Money Appeal No.3/2007 is held to be un-sustainable in law and is, therefore, set aside. The learned lower appellate court to decide the appeal afresh in the light of the observations made here-in above. Registry to send back the LCR. Upon receipt of LCR, fresh notices intimating the date of appearance in the appeal be issued to both the parties. This appeal is allowed to the extent indicated above. No order as to cost.
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