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Ghanshyam Sharma & Another v/s Hindustan Petroleum Corporation Limited


Company & Directors' Information:- HINDUSTAN PETROLEUM CORPORATION LIMITED [Active] CIN = L23201MH1952GOI008858

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- S C SHARMA AND CO PRIVATE LTD [Active] CIN = U74899DL1948PTC001507

Company & Directors' Information:- SHARMA INDIA PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035620

Company & Directors' Information:- K P SHARMA (INDIA) PVT LTD [Strike Off] CIN = U51109WB1988PTC045569

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- P C SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201DL1981PTC012750

Company & Directors' Information:- J. R. SHARMA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U24211DL1966PTC004602

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- SHARMA AND SHARMA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276949

Company & Directors' Information:- SHARMA & CO. PVT LTD. [Strike Off] CIN = U28991WB1949PTC018064

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

    Civil Miscellaneous Appeal No. 535 of 2007

    Decided On, 20 August 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER

    For the Appellants: Ghanshyamdas Mandhani, Bankatlal Mandhani, Advocates. For the Respondent: Thoom Srinivas, Advocate.



Judgment Text

1. This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, is filed by the appellants/plaintiffs, challenging the judgment and decree, dated 12.03.2007, passed in A.S.No.137 of 2004 by the IV Additional District Judge, Warangal, whereby, the appeal was allowed and the subject suit in O.S.No.171 of 1995 was remanded to the trial Court, i.e., Court of Principal Senior Civil Judge at Warangal, for fresh assessment of evidence and for considering the legal plea taken by the respondent/defendant, with a further direction to dispose of the suit at the earliest.2. Heard the submissions of Sri Ghanshyamdas Mandhani, learned counsel, representing Sri Bankatlal Mandhani, learned counsel for the appellants/plaintiffs, Sri Thoom Srinivas, learned counsel for the respondent/defendant and perused the record.3. The appellants herein are the plaintiffs and the respondent herein is the defendant before the trial Court. The parties will be hereinafter referred to, as per their array before the trial Court.4. Shorn of unnecessary details, the facts of the case are that the plaintiffs filed the subject suit in O.S.No.171 of 1995 before the Court of Principal Senior Civil Judge at Warangal, for eviction of the agents and workmen of the defendant Corporation and for delivery of vacant possession of the land bearing Municipal No.6/10/1, situated at Lashkar Bazar, Hanamkonda, Warangal (suit schedule site) and to direct the defendant Corporation to pay mesne profits from 01.06.1993 onwards till the delivery of possession, with interest and for costs. On merits, the suit was decreed with costs. Aggrieved by the same, the defendant Corporation preferred the subject Appeal Suit in A.S.No.137 of 2004 before the first appellate Court. In the subject Appeal Suit, the defendant Corporation filed an interlocutory application in I.A.No.1118 of 2006, under Order VI Rule 17 of CPC, seeking amendment of written statement in the Original suit. On merits, the said application was allowed by the first appellate Court by order, dated 12.03.2007, holding that in view of the rulings in the citations submitted by the counsel for the petitioner therein (defendant), he is entitled for amendment of the written statement even at the stage of appeal and that the amendment sought would not change the nature of the suit. The defendant Corporation also filed another interlocutory application in I.A.No.1315 of 2006 in the subject Appeal Suit, under Order XLI Rule 27 (b) of CPC, seeking permission to adduce additional evidence. On merits, the said application was also allowed by the first appellate Court, by order, dated 12.03.2007, holding that since I.A.No.1118 of 2006 was allowed permitting the defendant Corporation to amend the written statement, the documents supporting the legal plea should be allowed to be adduced as additional evidence. Thereafter, the first appellate Court passed the impugned judgment and decree, allowing the subject Appeal Suit and remanded the subject suit to the trial Court for fresh assessment of the evidence and for considering the legal plea taken by the defendant. Aggrieved by the same, the plaintiffs filed this appeal.5. The learned counsel for the appellants/plaintiffs would contend that the impugned judgment and decree is contrary to law, weight of evidence and probabilities of the case. The first appellate Court erred in allowing I.A.No.1118 of 2006 granting leave to the defendant Corporation to amend the written statement, without deciding whether the relief of eviction sought in the subsequent suit could have been raised in the prior suit filed for injunction simplicitor. The first appellate Court failed to appreciate the fact that the defendant Corporation has waived such plea and is estopped from raising the plea sought to be raised in I.A.No.1118 of 2006. The order in I.A.No.1118 of 2006 is not a speaking order. The order in I.A.No.1315 of 2006 is also a cryptic order. The first appellate Court decided I.A.No.1315 of 2006 on extraneous considerations and as such, said order is liable to be set aside. The impugned judgment and decree passed by the first appellate Court do not satisfy the requirements of law and as such, it is liable to be set aside. The first appellate Court disposed of the subject appeal suit in utter haste, without adverting to the issues involved and as such, it suffers from material irregularity. Though the orders passed in I.A.No.1118 of 2006 and I.A.No.1315 of 2006 were not challenged by filing Civil Revision Petitions before this Court, they have been specifically urged in the memorandum of grounds of appeal. Revision is a part of appellate jurisdiction and ultimately prayed to set aside the impugned judgment and decree and allow the appeal as prayed for. In support of his contentions, the learned counsel had placed reliance on the following decisions.1. Gayathri Women’s Welfare Association Vs. Gowramma and another (2011) 2 Supreme Court Cases 330)2. Rathnavathi and another Vs. Kavita Ganashamdas (2015) 5 Supreme Court Cases 223)3. P.Purushottam Reddy and another Vs. Pratap Steels Limited (2002) 2 Supreme Court Cases 686)4. Soni Dineshbhai Manilal and others Vs. Jagjivan Mulchand Chokshi (2007) 13 Supreme Court Cases 293).6. On the other hand, the learned counsel for the respondent/defendant would contend that the Court below allowed I.A.Nos.1118 and 1315 of 2006 on merits. Since both the interlocutory applications seeking permission to amend written statement and for adducing additional evidence were allowed, the first appellate Court is justified in remanding the subject original suit to the trial Court for fresh assessment of evidence and for considering the legal plea taken by the defendant Corporation. The judgment and decree under challenge do not suffer from any material irregularity. There are no circumstances to interfere with the same and ultimately prayed to dismiss the appeal. In support of his contentions, the learned counsel had placed reliance on a decision of the Hon’ble Apex Court in Edukanti Kistamma (dead) through LRs and others Vs. S.Venkatareddy (dead) through LRs and others (2010) 1 Supreme Court Cases 756).7. In view of the above rival contentions, the point that arises for determination in this appeal is as follows:“Whether the impugned judgment and decree, dated 12.03.2007, passed in A.S.No.137 of 2004 by the IV Additional District Judge, Warangal, is legally sustainable?” POINT:- 8. The undisputed facts are that the appellants/plaintiffs filed the subject suit for eviction of defendant Corporation from the suit schedule site and for mesne profits. The said suit was decreed on merits. Aggrieved thereby, the defendant Corporation preferred the appeal before the Court below along with two interlocutory applications, one for amendment of written statement filed before the trial Court and the other for adducing additional evidence. Both the applications were allowed on merits and the matter was remanded to the trial Court for fresh assessment of the evidence and for considering the legal plea taken by the defendant.9. First and foremost, a perusal of the material on record makes it clear that the orders passed by the Court below in the two interlocutory applications, i.e., I.A.Nos.1118 and 1315 of 2006 were not challenged by the appellants/plaintiffs by filing Civil Revision Petitions before this Court. Neither there is mention in the grounds of appeal nor it was brought to the notice of this Court at the time of arguments that revisions were filed challenging the orders passed in the interlocutory applications. Hence, it can be safely concluded that no revisions were filed challenging the orders passed by the Court below in the two interlocutory applications and as such, said orders attained finality.10. Secondly, the appellants/plaintiffs contended that the order passed in I.A.No.1118 of 2016 is not a speaking order and that the order passed in I.A.No.1315 of 2016 is a cryptic order and was decided extraneous to Order XLI Rule 27 of CPC and that the impugned judgment of remand passed by the Court below do not satisfy the requirement of law and it was passed in utter haste and without adverting to the issues involved and as such, it suffers from material irregularity. In this connection, it is apt to state that in the instant appeal filed under Order XLIII Rule 1 of CPC, this Court is only concerned about the legality and correctness of the remand order and not the merits of the case of either party. In fact, in a recent judgment in J.Balaji Singh Vs. Diwakar Cole and others (2017 ALL SCR 1270), the Hon’ble Apex Court, while examining the scope of power to be exercised by the appellate Court under Order XLIII Rule 1(u) of the CPC, held as follows:-"23) So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first Appellate Court and restored the judgment of the Trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law, then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits. 24) The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- "1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court. 25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here." 11. Keeping in view the above ratio laid down by the Hon’ble Apex Court, now it has to be seen whether the first Appellate Court was correct in remanding the case to the trial Court for fresh assessment of evidence and for considering the legal plea taken by the defendant. It is pertinent to state that there are three provisions in CPC, which deal with the powers of the Appellate Court to remand the case to the trial Court. They are Order XLI Rules 23, 23-A, and 25. Insofar as Order XLI Rule 23 is concerned, it enables the appellate Court to remand the case to the trial Court when it finds that the trial Court has disposed of the suit upon a preliminary point. The appellate Court, in such cases, is empowered to direct the trial Court to decide all the issues based on evidence on record. Insofar Rule 23-A is concerned, it enables the appellate Court to remand the case to the trial Court when it finds that though the trial Court has disposed of the suit on all the issues, but on reversal of the decree in appeal, a re-trial is considered necessary by the appellate Court. Insofar as Rule 25 is concerned, it enables the appellate Court to frame or try the issue if it finds that it is essential for a right decision in the suit and was not framed by the trial Court. The appellate Court, in such case, may, accordingly, frame the issue/s and refer the same to the trial Court to take the evidence and record the findings on such issues and return to the appellate Court for deciding the appeal. In such cases, the appellate Court retains the appeal to itself.12. Now coming to the facts of the case, this Court is of the opinion that once the first appellate Court allowed the application in I.A.No.1315 of 2006 filed under Order XLI Rule 27 (b) of CPC by coming to the conclusion that the document supporting the legal plea of the defendant Corporation should be allowed to be adduced as additional evidence, it rightly allowed the appeal and remanded the subject suit to the trial Court for fresh assessment of the evidence and for considering the legal plea taken by the defendant Corporation. The said course would, in turn, enable the trial Court to decide the subject suit afresh on merits in the light of entire evidence. The first Appellate Court was, therefore, justified in taking recourse to powers conferred on it under Order XLI Rule 23-A of CPC for remanding the case to the trial Court and as such, this Court do not find any fault in exercise of such power by the first Appellate Court. Having regard to the nature of factual controversy involved and keeping in view the nature of additional evidence, which is permitted to be let in and which too needs to be proved in evidence, it was not possible for the first appellate Court to retain the appeal to itself and invite finding only on additional evidence, by taking recourse to powers under Rule 25. On the other hand, the wholesome remand of the subject suit, as directed by the first Appellate Court, would enable the trial Court to appreciate the entire evidence in proper perspective while deciding the suit afresh on merits. Further, the reason as to why the additional evidence sought to be adduced at first appellate stage could not be filed during the course of trial, also found acceptance by the first appellate Court. In order to enable the parties to have fair trial in the subject suit and with a view to do substantial justice to the parties to the lis, the first appellate Court, in the considered opinion of this Court, rightly allowed the defendant Corporation to file the additional document, which satisfied the requirements of Order XLI Rule 27 of CPC. Moreover, there are no special and exceptional circumstances to interfere with the remand order passed by the first appellate Court, nor it would cause grave injustice to the appellants/plaintiffs if the impugned judgment and decree is not set aside.13. Thirdly, the learned counsel for the appellants/plaintiffs, relying on Soni Dineshbhai Manilal’s case (4 supra), contended that though the order passed in I.A.No.1118 of 2006 and I.A.No.1315 of 2006 are not separately challenged by filing Civil Revision Petitions before this Court, it is specifically urged in the memorandum of grounds of appeal that the said orders are legally unsustainable and that Revision is a part of appellate jurisdiction. In Soni Dineshbhai Manilal’s case (4 supra), the Hon’ble Apex Court held as under:It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the Memorandum of Appeal but the said interlocutory orders were not subjected to revision. What is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar vs, Krishnaji Dattatreya Bapat (AIR 1970 SC) that civil revision is a part of appellate jurisdiction. 14. There cannot any dispute with regard to the findings of the Hon’ble Apex Court in the aforementioned decision. But in Edukanti Kistamma’s case (5 supra), which is subsequent in date to the decision in Soni Dineshbhai Manilal’s case (4 supra), the Hon’ble Apex Court, held as follows:“It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined (vide P. Chithranja Menon & Ors. v. A. Balakrishnan & Ors., AIR 1977 SC 1720; H.V. Pardasani etc. v. Union of India & Ors., AIR 1985 SC 781; and Government of Maharashtra & Ors. v. Deokars Distillery, AIR 2003 SC 1216). 15. The learned counsel for the appellants/plaintiffs had relied on Gayathri Women’s Welfare Association’s case (1 supra), wherein, the Hon’ble Apex Court held that one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment. In Rathnavathi’s case (2 supra) relied upon by the learned counsel for the appellants/plaintiffs, the Hon’ble Apex Court held that one of the basic requirements for successfully invoking the plea of Order II Rule 2 of CPC is that the defendant in the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based and that when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, the plea of Order II Rule 2 cannot be allowed to be raised by the defendants and

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that since the plea of Order II Rule 2, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the Court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the legal provisions applicable for grant of reliefs in both the suits. In B.Purushottam Reddy’s case (3 supra) relied upon by the learned counsel for the appellants/plaintiffs, the Hon’ble Apex Court held that the validity of remand of case by appellate Court must be tested by reference to Order XLI Rule 25 of CPC. In view of the peculiar facts and circumstances of the case on hand, the aforementioned decisions relied by the learned counsel for the appellants/plaintiffs are distinguishable on facts.16. There cannot be any dispute with regard to the ratio laid down by the Hon’ble Apex Court in the aforementioned decisions. But, as mentioned supra, when the first appellate Court, in view of the facts and circumstances of the case, is shown to have rightly exercised its jurisdiction in remanding the subject suit to the trial Court for fresh assessment of evidence and for considering the legal plea taken by the defendant Corporation, it cannot be termed as an error, either of law or of facts.17. In view of the foregoing discussion, the Court below is justified in remanding the subject suit to the trial Court. There is no illegality or material irregularity in the judgment and decree under challenge. There is nothing to take a different view. The appeal is devoid of merit and is liable to be dismissed. Since the subject suit is of the year 1995, the trial Court is directed to dispose of the same within six (06) months from the date from which the trial Court starts functioning physically.18. With the above direction, the appeal is dismissed. No costs. Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
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