Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nSikkim High Court\nBhagi Maya Gurung And Anr vs Mahindra Gurung And Ors on 12 May, 2023Bench: Bhaskar Raj Pradhan\n              THE HIGH COURT OF SIKKIM : GANGTOK\n                    (Civil Revisional Jurisdiction)\n-------------------------------------------------------------------------------\nSINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE\n-----------------------------------------------------------------------------------------------------------------\n\n                         C.R.P. No. 01 of 2023\n\n     1.          Bhagi Maya Gurung,\n                 Aged about 58 years,\n                 Wife of Deo Narayan Gurung,\n                 Resident of Nizremang,\n                 P.O. Perbing and P.S. Namchi,\n                 South Sikkim-737 126.\n\n     2.         Ratna Kumari Gurung,\n                Aged about 55 years,\n                Wife of Dawa Tashi Sherpa,\n                Resident of Nizremang,\n                P.O. Perbing and P.S. Namchi,\n                South Sikkim-737 126.\n                                                                   ..... Revisionists/Plaintiffs\n\n                                                 Versus\n\n     1.          Mahindra Gurung,\n                 Aged about 68 years,\n                 Son of Late Kul Bahadur Gurung,\n                 Resident of Nizremang,\n                 P.O. Perbing and P.S. Namchi,\n                 South Sikkim-737 126.\n\n     2.          Kharka Kumar Gurung,\n                 Aged about 64 years,\n                 Son of Late Kul Bahadur Gurung,\n                 Resident of Nizremang,\n                 P.O. Perbing and P.S. Namchi,\n                 South Sikkim-737 126.\n\n     3.          Devi Maya Gurung,\n                 Aged about 53 years,\n                 W/o Late Junge Gurung,\n\n     4.          Durgay Gurung,\n                 Aged about 36 years,\n                 Son of Late Junge Gurung,\n\n     5.          Ashok Gurung,\n                 Aged about 34 years,\n                 Son of Late Junge Gurung,\n                                                                                    2\n                                     C.R.P. No. 01 of 2023\n                      Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n         6.       Chandra Bahadur Gurung,\n                  Aged about 30 years\n                  Son of Late Junge Gurung\n         7.       Lachu Gurung,\n                  Aged about 28 years,\n                  Son of Late Junge Gurung,\n         8.       Deegen Gurung,\n                  Aged about 17 years,\n                  Son of Late Junge Gurung\n         9.       Tara Gurung,\n                  Aged about 24 years,\n                  Daughter of Late Junge Gurung,\n                  Wife of Pema Ongchu Sherpa,\n                  Respondent no. 3 to 9 are the Residents of Nizremang\n                  P.O. Perbing & P.S. Namchi,\n                  South Sikkim - 737 126.\n\n         10.      Renuka Gurung,\n                  Aged about 22 years,\n                  Daughter of Late Junge Gurung,\n                  Wife of Rinzing Lepcha,\n                  Resident of Palak,\n                  P.O. Bermiok P.S. Temi,\n                  South Sikkim - 737 134.\n\n         11.      Sub-Divisional Magistrate-cum-Registrar,\n                  Land Revenue and Disaster Management\n                  Department, Namchi\n                  Sikkim -737126.\n                                          .....Respondents/Defendants\n      -------------------------------------------------------------------------\n     Application under Section 115 read with Section 151 of the\n                 Code of Civil Procedure, 1908.\n\n(Order dated 09.11.2022 passed by the Learned District Judge, South Sikkim\n at Namchi in Title Appeal No. 03 of 2020, Shri Mahindra Gurung & Ors. Vs.\n Bhagi Maya Gurung and Anr. setting aside order dated 09.11.2022 passed\n by the learned District Judge, South Sikkim at Namchi in Title Appeal No. 03\n  of 2020, Shri Mahindra Gurung and Ors. vs. Bhagi Maya Gurung & Anr.)\n  -------------------------------------------------------------------------------\n  Appearance:\n              Ms.    Gita   Bista,     Legal          Aid      Counsel       for   the\n              Revisionists/Plaintiffs.\n              Ms.     Yangzee       Pinasha,                      Advocate          for\n              Respondent/Defendants Nos. 1 to 10.\n              Mr. Yadev Sharma, Government Advocate and Ms. Pema\n              Bhutia,    Assistant  Government     Advocate   for\n              Respondent/Defendant No.11.\n      -------------------------------------------------------------------------\n                                                                        3\n                            C.R.P. No. 01 of 2023\n             Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n     Date of hearing             :      12.05.2023\n     Date of Order               :      12.05.2023\n\n            O R D E R (O R A L)\nBhaskar Raj Pradhan, J.\n\n\n1.   The present revision petition challenges the Order\n\npassed by the learned District Judge dated 09.11.2022\n\n(impugned order) in Title Appeal No. 03 of 2020 remanding\n\nthe matter for fresh disposal on merits without reversing\n\nthe decree in appeal. The revision petition therefore, raises\n\nan important question on the scope of Order XLI Rule 23A\n\nof the Code of Civil Procedure, 1908 (CPC).\n\n2.   Title Suit No.12 of 2018 was preferred by the\n\nrevisionists/plaintiffs against the respondents/defendants.\n\nThe Trial Court framed 16 issues on 09.07.2019 and\n\nproceeded to take evidence. The revisionists/plaintiffs\n\nexamined four witnesses. The respondent nos. 1 to\n\n10/defendant nos. 1 to 7 examined seven witnesses. The\n\ndefendant    no.11      examined         three      witnesses.     Various\n\ndocumentary evidences were also exhibited by the parties.\n\nThe learned Trial Judge after examining the issues\n\nrendered her judgment and passed the decree both dated\n\n24.12.2019. Title Appeal No. 03 of 2020 was thereafter,\n\npreferred by the respondent nos. 1 to 10/defendant nos. 1\n\nto 10.\n                                                                          4\n                            C.R.P. No. 01 of 2023\n             Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n3.   The impugned order records the rival submission of\n\nthe learned counsel for the parties. It was neither the\n\ncontention    of      the      revisionists/plaintiffs             nor   the\n\nrespondents/defendants that they had failed to understand\n\nthe issues framed or were confused on whom the burden of\n\nproving the same lay. However, by the impugned Order\n\ndated 09.11.2022 the learned District Judge concluded\n\nthat though 16 issues have been framed, the learned Trial\n\nJudge had failed to fix the onus upon the parties and\n\ntherefore, the parties had adduced their evidence without\n\nonus being fixed. The learned District Judge was also of the\n\nopinion that for certain contentions raised by the parties\n\ni.e. the contention of the revisionists/plaintiffs that the suit\n\nland was stridhan of their late mother; contention of the\n\nrespondent nos. 1 to 10/defendant nos. 1 to 10 that the\n\nsuit land was self acquired property of their late father; and\n\nthe contention of the performa respondent no.11/defendant\n\nno.11 that the suit land was mutated following due process\n\nof law, proper evidence was not placed before the learned\n\nTrial Judge owing to which it is difficult for the Appellate\n\nCourt to decide the appeal. In such circumstances, the\n\nlearned District Judge resorted to the provisions of Order\n\nXLI Rule 23A of the CPC and remanded the matter to the\n\nTrial Court for fresh disposal on merits. The learned\n\nDistrict Judge directed the Trial Court to reframe the\n                                                                           5\n                               C.R.P. No. 01 of 2023\n                Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\nissues, if required, for adjudication fixing onus upon the\n\nparties, conduct the trial to ascertain the issues, and to\n\ndispose the case within a period of 6 months from the date\n\nof first appearance of the parties.\n\n4.    Heard Ms. Gita Bista, learned counsels for the\n\nrevisionists/plaintiffs,         Ms.      Yangzee         Pinasha,    learned\n\ncounsel for the respondent nos.1 to 10/defendant nos. 1 to\n\n10 and Mr. Yadev Sharma, learned Government Advocate\n\nfor respondent no.11/defendant no.11.\n\n5.    Order XLI Rule 23A CPC reads as under:\n\n             "Remand in other cases. - Where the court from whose\n             decree an appeal is preferred has disposed of the case\n             otherwise than on a preliminary point, and the decree is\n             reversed in appeal and a re-trial is considered necessary,\n             the Appellate Court shall have the same powers as it has\n             under Rule 23."\n\n6.    In order for the Appellate Court to exercise the same\n\npowers as it has under Order XLI Rule 23, Rule 23 A of the\n\nCPC involves two pre-requisites. Firstly, the decree is\n\nrequired to be reversed in appeal. Secondly, the Appellate\n\nCourt must conclude that retrial is necessary. The\n\nSupreme Court in Jegannathan vs. Raju Sigamani & Anr.1\n\nheld that Order XLI Rule 23A provides that where the trial\n\ncourt has disposed of the suit on merits and the decree is\n\nreversed in appeal and the Appellate Court considers that\n\nretrial is necessary, the appellate court may remand the\n\n1 (2012) 5 SCC 540\n                                                                       6\n                               C.R.P. No. 01 of 2023\n                Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\nsuit to the trial court. In Shiva Kumar vs. Sharanabasappa2\n\nthe Supreme Court held that a comprehension of the\n\nscheme of the provision for remand as contained in Rule 23\n\nand 23A of Order XLI is not complete without reference to\n\nthe provisions contained in Rule 24 of Order XLI that\n\nenables the appellate court to dispose of a case finally\n\nwithout a remand if the evidence on record is sufficient.\n\nThe Supreme Court held that a conjoined reading of Rules\n\n23, 23A and 24 of Order XLI brings forth the scope as also\n\ncontours of the powers of remand that when the available\n\nevidence is sufficient to dispose of the matter, the proper\n\ncourse for an appellate court is to follow the mandate of\n\nRule 24 of Order XLI CPC and to determine the suit finally.\n\nIt is only in such cases where the decree in challenge is\n\nreversed in appeal and a retrial is considered necessary\n\nthat the appellate court shall adopt the course of\n\nremanding the case. It remains trite that order of remand is\n\nnot to be passed in a routine manner because an\n\nunwarranted order of remand merely elongates the life of\n\nthe litigation without serving the cause of justice.\n\n7.    The impugned order passed by the learned District\n\nJudge does not satisfy the two pre-requisites of Order XLI\n\nRule 23A of the CPC.\n\n\n\n2 (2021) 11 SCC 277\n                                                                    7\n                            C.R.P. No. 01 of 2023\n             Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n8.   The learned District Judge did not reverse the decree\n\nin appeal.\n\n9.   A perusal of the impugned judgment reflects that the\n\nlearned District Judge was concerned about the Trial Court\n\nnot fixing the burden of the issues on the parties. Order\n\nXIV of the CPC is an important procedure which will decide\n\nthe fate of the trial. The learned Trial Judge is required to\n\nexamine the material preposition of fact or law affirmed by\n\none party and denied by the other and frame distinct\n\nissues. Issues are framed when material proposition of fact\n\nor law is affirmed by one party and denied by the other.\n\nWhen a material proposition of fact or law is affirmed by\n\none party and denied by the other the burden to prove the\n\nsame is cast upon the party who affirms it. To ensure that\n\nthe parties who go to trial are aware that they are burdened\n\nto prove the fact asserted by them the Trial Court fixes the\n\nburden while framing the issues.\n\n10. The Trial Court having framed issues proceeded to\n\ntake evidence and render a judgment on all the issues. The\n\nTrial Court was not troubled in rendering the judgment\n\nalthough no burden was cast upon the parties. It is also\n\nequally clear that the parties before the Trial Court, both\n\nduring the trial as well as during the hearing of the case,\n\nwere clear as to which of the issues had to be proved by\n                                                                           8\n                             C.R.P. No. 01 of 2023\n              Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\nwhom. This is the specific submission made by the learned\n\ncounsel for the parties before this court as well. If the\n\nparties were clear about their respective burden and led\n\ntheir evidence accordingly no prejudice would be caused\n\neven if the burden was not specifically fixed upon any of\n\nthe parties while framing of the issues. This is however, not\n\nto say that the concern of the learned District Judge on the\n\nfailure of the Trial Court to fix the burden of the issues\n\nframed on the parties asserting was misplaced. Although it\n\nis mandatory for the Trial Court to frame the issues and\n\nimportant to fix the burden it may be that sometimes the\n\nTrial Court ignores to fix the burden. When in cases, such\n\nas the present one, where in spite of the fact that the Trial\n\nCourt has ignored to fix the burden, and parties have led\n\nevidence during the trial and judgment rendered by the\n\nTrial Court it would be important for the Appellate Court to\n\nexamine the prejudice caused by the failure. When the\n\nparties during the trial were clear on whom the burden of\n\nproving the material preposition of fact or law lay it would\n\nnot be correct for the Appellate Court to remand the matter\n\nand subject them to a de novo trial when clearly no\n\nprejudice was caused to any of the parties. After all it was a\n\nmatter   of   not     following        a    procedure         and   not   an\n\ninfringement of a substantive provision of law.\n                                                                     9\n                             C.R.P. No. 01 of 2023\n              Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n11. The second concern of the learned District Judge was\n\nthat proper evidence was not placed before the learned\n\nTrial Judge on certain assertion made by the parties. The\n\nrecord reveals that specific issues have been framed by the\n\nlearned Trial Judge on the said assertions and the parties\n\nhave laid their evidence. Further the learned Trial Judge\n\nhas also rendered her opinion on them. When specific\n\nissues have been framed and the parties are aware that\n\nthey are required to establish the material preposition of\n\nfact or law it is incumbent upon them to lead material\n\nevidence before the court. Inadequacy of evidence when\n\nissues are framed would have a direct bearing on the\n\nissues. If an issue has been framed and the burden is fixed\n\nupon the person asserting it then failure to adduce\n\nevidence or lead adequate evidence would have a direct\n\nimpact on the fact asserted by the party who is required to\n\nprove it.   The only necessity which can be deciphered from\n\nthe impugned judgment is the learned District Judge's\n\ninability to decide the appeal due to perceived lack of\n\nevidence on the specific contentions dealt above. If issues\n\nare framed and evidence led, failure to lead evidence will\n\nhave its consequences. Remanding the matter for a de novo\n\ntrial in such cases may permit the parties to fill up the\n\nlacunae in their case which is not permissible.\n                                                                              10\n                                      C.R.P. No. 01 of 2023\n                       Bhagi Maya Gurung & Anr. vs. Mahindra Gurung & Ors.\n\n\n      12. None of the above concerns posed by the learned\n\n      District Judge, in the facts and circumstances of the case,\n\n      necessitates a re-trial.\n\n      13. This court is therefore, of the view that the learned\n\n      District Judge has incorrectly exercised her power under\n\n      Order XLI Rule 23A of the CPC and remanded the matter to\n\n      the Trial Court instead of deciding the appeal as per law.\n\n      14. Thus the impugned order dated 09.11.2022 is set\n\n      aside. The revision petition is allowed. Title Appeal No. 03\n\n      of 2020 shall be placed before the learned District Judge\n\n      who shall decide the same as per law. Pending interim\n\n      application is also disposed of accordingly.\n\n\n\n\n                                    ( Bhaskar Raj Pradhan )\n                                           Judge\n\n\n\n\n      Approved for reporting   : Yes\n      Internet                   : Yes\nto/