This revision petition is directed against the order of the Administrative Civil Judge, Gujarat, dated 2-2-1972, dismissing the petitioner's application- under Order VI,' rule 17, C. P. C. For amendment of the written statement.
2. The petitioner is a vendee of the property in dispute for possession, of which the respondents filed a suit in the exercise of their right of pre---emption. In para. 3 of the plaint it is alleged that the plaintiff-respondents are co-owners in the village, khata as well as Patti, while the defendant--, petitioner is not even an owner in the village. It is further alleged that the ostensible value of Rs.
31,742 was neither fixed nor paid; in fact the property was sold for a sum of Rs. 15,000, which was also its market value. This suit was contested by the defendant-petitioner on the grounds of insufficiency of valuation for the purposes of court-fee and jurisdiction, partial pre-emption, waiver and limitation. The sum of Rs. 31,742 was claimed as having been fixed and paid bona fide. It was further claimed that the defendant-petitioner had spent a sum of Rs. 12,000 on making improvements. The averments made in para. 3 of the plaint about the superior right of pre- emption were not controverter specifically. This right was indirectly admitted by the plea of waiver.
The following issues -were framed by the learned trial Court: -
(1) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? O. P. P.
(2) Whether the suit is not within time? O. P. D.
(3) Have not plaintiffs waived their right of pre-emption? O. P. P.
(4) Is the suit for partial pre-emption? If so, its effect? O. P. D.
(5) Was the sum of Rs. 31,742 fixed in good faith or actually paid as the sale consideration? O. P. D.
(6) If issue No. 5 is not proved what is the market value? O. P. P.
(7) Has the defendant affected improvements over the suit land, if so, when, to what extent and with what effect? O. P. D.
(8) Relief.
Issues Nos. 1 and 7 were dealt with together. It was held that the defendant-petitioner had effected the improvements valued at Rs. 800 only, over the land in suit before the institution of the suit. The plaintiffs were, therefore, directed to make up the deficiency of court-fee of this amount on or before the 26th March 1970. Issue No. 2 regarding limitation was not pressed. It was held that the suit was clearly within -time. Issue of waiver was decided against the defendant-petitioner.
Issue No. 4 was similarly decided against defendant-petitioner on the concession of his learned counsel that the suit was not for partial pre--emption. Under issue No. 5 it was held that the sum of 31,742 was fixed in good faith and was actually paid. Issue No. 5 was held to be redundant in view of the finding on issue No. 5. As a result of these findings the suit of the plaintiff-respondents was decreed on the 17th March 1970, subject to their depositing a sum of Rs: 32,542 less 1/5th amount already ,.Deposited on or before the 6th May 1970.
3. The defendant-petitioner filed an appeal against this decree. He challenged the finding of the trial Court on Issue No. 7 only. The -respondents filed cross-objection impugning finding of the trial Court on Issue No. 5. After giving detailed facts of the case and observing that the superior right of pre-emption of the respondents was admitted by the petitioner and that the findings on Issues Nos. 1 to 4 were not challenged, the learned District Judge considered the case on issues Nos. 5 and
7. He reversed the finding of the learned trial Court on both the issues. He held that the sum of Rs.
31,742 was not proved to have been fixed and actually paid. This finding necessitated a finding on Issue No. 6. Regarding the improvements the learned Judge held that the value could not be decided without appointing a local Commissioner. Accordingly be accepted the appeal and `cross-objections and remanded the suit for determination of the market value of the property as well as the market value of the improvements, which were to be assessed by a local Commissioner.
4. In post-remand proceedings the defendant-petitioner submitted an application on 20th January 1972, for amendment of the written statement. He raised the following three pleas: -
(1) The plaintiffs had no superior right of pre-emption;
(2) the suit of the plaintiffs could not proceed in view of Martial Law Regulation No. 64 ; and
(3) the plaintiffs were estopped from filing the suit. It was contended that the issue of waiver was the only issue framed although the real plea of defendant is that of estoppels.
This application was resisted by the respondents and was dismissed by the impugned order dated 2-2-1972 on the grounds that denial of right of pre-emption would amount to changing the nature of the defense, the question of estoppel was never raised and the bar of Martial Law Regulation No. 64 could not be pleaded as the plaintiffs had filed the suit on the basis of their co-ownership in the village as well as khata.
5. After hearing the learned counsel for the parties I find myself in complete agreement with the reasoning given by the learned trial Court. To permit the defendant to deny the superior right of pre-emption will amount to changing the nature of the defence at a very late stage. The plea of the defendant was that of waiver and not of estoppels. No issue on the question of estoppels was ever raised.
6. It is not clear on what ground the bar of Martial Law Regula--petition No. 64 is being pleaded now. The amendment application is, therefore, extremely vague. It appears that the case of the defendant --petitioner in arguments before the trial Court was that the plaintiffs were not owners in the village and co-owners in the khata. The learned trial Court was, therefore, right in holding that the plaintiffs' suit was based on there being co-owners in the village as well as in the khata.
7. In the circumstances of the present case a question of jurisdiction of the trial Court to allow the proposed amendment also arises. The petitioner had filed an appeal against the trial Court's decree while the respondents had filed cross-objections. The matter was remanded by the learned District Judge for a fresh decision on the market value of the property in dispute and the improvements made thereon. The finding on issues Nos. I to 4 was maintained, as they were never challenged. The decision of the District Judge amounts to a finding that the respondents bad a superior right of pre-emption and a decree should be passed in their favor subject to payment of the market value of the land and improvements made thereon after they are assessed by a local Commissioner. This order was appeal able under Order XLIII, rule 1(b), C. P. C. but it was not challenged in appeal. It thus attained finality under section 105(2), C. P. C. The petitioner is therefore precluded from disputing its correctness not only before the trial Court in present proceedings but also before a Court of concurrent jurisdiction or a superior Court in an appeal against any order or decree that may be passed in post-remand proceedings. Abdul Hakim v. Sadullah (PLC 1970 SC 63), Nooran v. Shah Muhammad (PLD 1968 Lah. 433),. Fatal Hussain v. Abdul Hakim (PLD 1971 Lah.
89The petitioner cannot, therefore, bellowed to challenge or by-pass those findings by an amendment petition before the trial Court. The trial Court is bound by the order of the learned District Judge on the questions about the maintainability of the suit or the superiority of right of pre-emption which have already been determined. The only matters that are open to the trial Court to determine and decide are the questions of market value or the value of improvements.
The jurisdiction of the trial Court' under Order VI, rule 17, C. P. C. For allowing amendment of pleading is confined only to these two questions.
8. I have gone through the entire case-law on the scope of Order XLI, rule 23, C. P. C. and I have not been able to find out a single precedent or authority allowing the trial Court in any proceedings after the remand to re-open questions already determined by the appellate Court or abandoned by the parties in appeal in which an order of remand was passed. In Maru Bin Patlaji v. Gopal Bin Satu (I L R 2 Bom. 120 ) the defence of limitation was raised for the first time after the remand order.
It was held: "There having, however, been a remand in this case it was not, we think, competent for the Division Bench, to which there was a special appeal from the decree made on such remand, to permit the defence of limitation to be raised for the first time. To decide this case then upon that ground was virtually to review the decree of the Division Bench, which made the order of remand on the special question already mentioned. For, if the point of limitation were good, the Division Bench should have disposed of the case on that ground, and not have remanded the case, as it $j did." (The underlining* is mine). Same view was taken in Sheo Sahoyl Tewaree and others v. Ram Prasad Narain ((1875) 24 Suth. W R 333). In Shib Chand Lahiri v. Joymale Dasi and others (7 Cal. L R 103 ) it was held that a Court to which a case is remanded for retrial on a particular issue cannot on remand allow that issue to be abandoned and proceed to try the case upon the other issues raised. The Allahabad High Court took the same view in Chunnilal and others v. Habib A.I and others (AIR 1916 All. 213). In that case the plaintiff's suit on a mortgage was dismissed on the ground that no consideration in the mortgage deed C. Had passed. The plaintiff appealed to the High Court. The High Court held that the passing of consideration was proved and remanded the case to the lower Court under Order XLI, rule 23 for decision on merits. The defendants did not try before the High Court to support the judgment of the lower Court on any other ground. On the case being remanded to the lower Court they objected that the mortgage deed had not been properly attested within the meaning of section 59 of the Transfer of Property Act. The lower Court again dismissed the suit on that ground. It was held that the effect of the order of remand was to send back the .Case to the first Court to have the remaining issues tried and that the latter was not competent to frame and try a preliminary issue. In a Madras case cited as T. K. Parasupattar and another v. T. K. Venkatachala Pattar (AIR 1916 Mad. 421it was observed that it is the duty of a subordinate Court to .Accept the pronouncement made by an appellate Court which the parties have chosen not to appeal against and had acted upon. Gopal Rao and .Others v. Nemichand and others (AIR 1921 Nag. 129(2)=61 I C 575 is more specific about the cases where a particular finding is not challenged before the appellate Court which passed the order of remand and the above principle was applied to such cases also. It was held "It seems sufficient to say that the defendants cannot succeed on grounds which they did first Court and in first appeal, but it seems clear that they did not argue the points before my predecessor in second appeal. Even if they did argue it, it is clear that there is a finding against them. My predecessor held that the appeal before him could not be supported if the family was joint and Jagoba was the manager. It was not open to the lower Appellate Court to .Consider arguments which had been abandoned in second appeal or to come to fresh findings on points which had been definitely decided by the order of remand." The above principles of law find support from Sripat Singh Dugar and another v. R.I Hariram Goenk and others (AIR 1922 P C 51The question in that case was whether an application for execution of a .Decree was within limitation in 1916 and in order to decide that question it was necessary to establish that there had been previous execution proceedings in 1904 and that the judgment-debtor had been served with notice of execution in 1916. The Judge of the lower Court considered the question whether there had been previous execution proceedings in 1904 and came to the conclusion that there had been such proceedings but the judgment did not reveal whether he had considered the question of the judgment-debtor being served with notice in 1916. The High Court, therefore, remanded the case for a finding on the second point. Their Lordships of the Privy Council, therefore, observed that the High Court must betaken to have agreed with the lower Court as to what took place in 1904, because otherwise it would not have been neces--sary to remand the case for a finding about the service of notice in 1916 and held that where the remand was ordered on one of the two points raised any one of which would have been sufficient to dispose off the case, the remand order must be deemed to have confirmed the decision on other point. For other cases see Mt. Muneswari and others v. Sm. Jugal Mohini Dasi (AIR 1952 Cal. 368), Charles N. Ambrose v.
Meenakshi Ammal Ramal Ammal (A'I R 1953 Trav.-Co. 109) and Kanhanya Singh and others v.
Bhagwat Singh and others (AIR 1954 Pat. 326).
9. Cases in which it has been held that the trial Court had jurisdiction are those where in spite of the observations made in the remand order, the entire case was left open to be decided by the trial Court or where the particular point raised before the trial Court was included in the question or issue for decision of which the matter was remanded by the , appellate Court. Such cases are (1869) 12 Suth. W R 112, Khagendna Nath Chatterjee and others v. Sonatah Guha and others (AIR 1916 Cal. 722), Lachmipal Singh v. Bhagwat Singh (AIR 1925 Oudh 527), Lingh RaoJi Sulkarni and others v. Secretary of State (AIR 1928 Bom.
201), Kanak Kanti Roy v. Kripa Nath Gani and others (AIR 1931 Cal. 221), B. Lakshmi Narain and others v. Mt. Mohamdi Begum AIR 1932 Oudh 123and Ram Gulzari Lal v. Bhano Parashad (AIR 1941 Nag.
188).
10. In case where a final decision by the appellate Court remanding the case is not specific or implied or a remand is made for the consideration of the entire case it will be open to the trial Court to allow amendment of F the pleadings under Order VI, rule 17 as held in Masud A.I v. A.I Haibat` Khan and 2 others (PLD 1958 Lah. 340). But this principle will not apply to a case where the remand is for consideration of a limited question.
11. Order VI, rule 17, C. P. C. Permits the Court to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and this permission can be granted at any stage of the pro--ceedings. This provision vests a Court with jurisdiction to allow amendment of the pleadings before it but does not vest a Court with jurisdiction to F' disturb or take away the finality given to a particular order by section 105(2), C. P. C. The word `pleadings' therefore in Order VI, rule 17 connotes that part of pleading which is before the trial Court in accordance with the) order of remand. In the present proceedings the only pleading before the trial Court is the matter of market value of the land and the improvements and the trial Court can exercise the jurisdiction under Order VI, rule 17, only to the extent of this pleadings.
12. The revision petition is without any merit and is dismissed with costs.