Remand of suit for retrial due to mistrial

What constituted Mistrial of suit?

In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons:

Non-consolidation of identical suits:

First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases.

It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders – one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case.

Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code.

Non-impleadment of necessary parties:

Second, we find that the case which was filed first,i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made parties -non-applicants by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents.

In our opinion, these two State authorities should also have been arrayed as non-applicants in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases.

Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents’ title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments.

Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases.

This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence.

Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues.

Appreciation of evidence u/a 227:

Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court.

The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition.

In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits.

Directions for remand for retrial:

In view of foregoing discussion, the appeals succeed and are allowed in part. The impugned judgment as also that of the Special Court are set aside.

As a consequence, both the cases, i.e., LGC Nos.41/1994 and 50/2004 are restored to their respective files before the Special Court. It is directed that both the cases be clubbed together for their disposal on merits. It is further directed that the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad would also be made party respectively. These two newly added non-applicants in LGC No. 50/2004 are afforded an opportunity to file their counter affidavits in LGC No.50/2004.

All the parties in both the cases are also afforded an opportunity to amend their pleadings in case, if they so consider it proper and also file any additional evidence both oral and documentary in addition to what has already been filed in support of their respective case, if they so desire to file.

After completion of the pleadings, if considered necessary, the Court may also frame additional issues or/and recast the issues already framed and then decide both the cases by common judgment.

[Source: Dr. Kazimunnisa  vs Zakia Sultana, decided by SC on 15 November, 2017]
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