HIYA ASSOCIATES & ORS. versus NAKSHATRA PROPERTIES PVT. LTD.

Citation: [2018] 12 S.C.R. 135 · Decided: 26-09-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Case Partly allowed

Judgment (excerpt)

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HIYA  ASSOCIATES & ORS.
v.
NAKSHATRA PROPERTIES PVT. LTD.
(Civil Appeal Nos. 9996-9997 of 2018)
SEPTEMBER 26, 2018
[ABHAY MANOHAR SAPRE AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Remand:
Remand of case to Revisionary Court – On facts, failure of
the appellant-tenant to vacate possession of the suit premises to
respondent-owner in terms of the compromise, led to filing of
execution application by respondent – Objections raised by
appellant – Executing court overruling all the objections, directed
issuance of warrant of possession in respect of suit premises against
the appellants – Filing of Revision by appellant – Revisionary Court
remanded the matter to the Executing Court   – In writ petition, the
High Court set aside the order of the revisionary court and restored
the order of the Executing Court – On appeal, held: Revisionary
Court erred in remanding the case to the Executing Court for its
fresh consideration on merits – Since the Executing Court had
already decided all objections raised by the appellants on merits
and had found no merit therein, the Revisionary Court was under
legal obligation to decide the legality and correctness of the findings
recorded by the Executing Court – Revisionary Court also erred in
allowing the appellants to file additional documents, which
were neither relevant and nor material for deciding the
correctness of the order passed by the Executing Court –
Furthermore, the High Court having noticed the errors in the order
of the Revisionary Court should have remanded the case to the
Revisionary Court for deciding the revision afresh on merits –
Thus, case remanded to the Revisionary Court for deciding the
revision afresh.
Remand of a case to Subordinate Court – When necessary –
Held: Remand is necessary when the Superior Court while exercising
 [2018] 12 S.C.R. 135
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SUPREME COURT REPORTS
[2018] 12 S.C.R.
its appellate or revisionary jurisdiction finds that the Subordinate
Court has failed to decide some material issues arising in the case
or there is some procedural lacuna noticed in the trial, which has
adversely affected the rights of the parties or when some additional
evidence is considered necessary to decide the rights which was
not before the trial court.
Partly allowing the appeals, the Court
HELD: 1.1 The impugned order as also the order passed
by the Revisionary Court are set aside. The case is remanded to
the Revisionary Court for deciding the appellants revision afresh
on merits in accordance with law. [Para 14, 28] [140-A-B; 142-C]
1.2 The Revisionary Court committed two errors. In the
first place, it should not have remanded the case to the Executing
Court for its fresh consideration on merits but it should have
decided the revision on merits in accordance with law. It is for
the reason that the Executing Court had already decided all
objections raised by the defendants (appellants) on merits and
had found no merit therein. The Revisionary Court was, therefore,
under legal obligation to decide the legality and correctness of
the findings recorded by the Executing Court on its merits in its
revisionary jurisdiction instead of remanding the case to the
Executing Court. Indeed, there is no justifiable reason, which
could justify remand having regard to the nature of the objections
raised by the defendants (appellants) before the Executing Court.
This was not the case, which needed remand to the Executing
Court for its fresh decision on merits. [Para 16, 17] [140-C-E]
1.3 The remand of a case to the Subordinate Court is
considered necessary when the Superior Court while exercising
its appellate or revisionary jurisdiction finds that the Subordinate
Court has failed to decide some material issues arising in the
case or there is some procedural lacuna noticed in the trial, which
has adversely affected the rights of the parties while prosecuting
the suit/proceedings or when some additional evidence is
considered necessary to decide the rights of the parties which
was not before the Trial Court etc. Such was not the case here.
[Para 18][140-F-G]
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1.4  The error committed by the Revisionary Court was
that it allowed the defendants (revision petitioners) to file
additional documents to prove their case. The documents sought
to be filed by the defendants were neither relevant and nor
material for deciding the legality and correctness of the order
passed by the Executing Court. The legality and correctness of
the order impugned in 

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