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2000 DIGILAW 942 (PNJ)

Harbans Singh v. Atma Singh

2000-08-17

SWATANTER KUMAR

body2000
JUDGMENT Swatanter Kumar, J. - Challenge in this appeal is to the order dated 18.2.1998 passed by the learned Additional District Judge, Ferozepur. The plaintiff had filed a suit for declaration with consequential relief of permanent injunction against the defendants. It was stated that Shri Gurdial Singh never married and died issueless. He died on 21.5.1992. The defendants illegally obtained a judgment and decree dated 14.3.1992 in the suit titled as Harbans Singh v. Gurdial Singh. The property in suit was ancestral property and no family partition had ever taken place. The plaintiffs claim to be heirs of the deceased. As such they challenged the decree and claimed ownership in the land in dispute. 2. The suit was contested by the defendants, who stated that the decree dated 14.3.1992 was valid. Legal and is not liable to be set aside. It was further stated that Gurdial Singh while in sound disposing mind during his life time executed a Will dated 28.3.1984 in favour of defendant No. 2 and Lakhwinder Singh, but excluding the plaintiff from inheriting the property. On pleadings of the parties, the trial Court vide its order dated 1.2.1993 had framed the following issues :- 1. Whether the judgment and decree dated 14.3.1992 is null and void as alleged ? 2. Whether the plaintiff has locus standi to file the suit ? OPP. 3. Whether the plaintiff is entitled for the injunction prayed for ? OPP 4. Relief. 3. The learned trial court after affording opportunity to the parties to lead evidence dismissed the suit of the plaintiff. This judgment and decree of the trial Court was assailed in appeal by the unsuccessful plaintiff. The learned first Appellate Court, as already noticed, remanded the matter while concluding as under :- "I have heard the arguments of the Ld. counsel for the parties. The contention of the Ld. counsel for the respondent is that a number of issues which arose from the written statement filed by them in the suit have not been framed by the Ld. trial Court. I am also of the opinion that material issues with respect to the will dated 23.3.1994 alleged to have been executed by Gurdial Singh, the suit not being maintainable in the present form, the suit if valued properly for the purpose of court fee and jurisdiction etc. have not been framed. trial Court. I am also of the opinion that material issues with respect to the will dated 23.3.1994 alleged to have been executed by Gurdial Singh, the suit not being maintainable in the present form, the suit if valued properly for the purpose of court fee and jurisdiction etc. have not been framed. I am, therefore, of the opinion that judgment and decree under appeal are liable to be set-aside. I accordingly set aside the judgment and decree dated 26.7.96. The following additional issues are framed in the case :- 4. Whether Gurdial Singh executed a valid will dated 28.3.94 in favour of Kulwant Singh and others, if so, its effect ? OPD 5. Whether the suit for mere declaration without asking for possession is maintainable in the present form ? OPP 6. Whether the plaintiff is debarred by him own act and conduct to file the present suit ? OPD 7. Whether the suit is not valued properly for the purposes of court fee and jurisdiction ? OPD 8. Whether the decree dated 14.3.92 required registration, if so, what is effect of non-registration of the decree ? OPP 9. Whether the plaintiff is entitled to the declaration prayed for ? OPP 10. Relief. 4. The above order has been mainly assailed in appeal by the learned counsel on the ground that under the provisions of Order 41 Rule 23 read with Rule 25 of the Civil Procedure Code the Appellate Court is obliged to set aside the findings recorded by the trial Court on the existing issues as a condition precedent to an order of remand and for this purpose the learned counsel relies upon a judgment of this Court in the case of Nirbhay Singh v. Gurdev Singh, 1991(2) PLR 687. The learned counsel for the respondents contends that the impugned order is in consonance with the settled principles of law and does not call for any interference by this Court. 5. As is apparent from the above noticed facts the learned First Appellate Court came to a definite conclusion that framing of additional issues was essential to determine the real controversy between the parties. It is a settled principal of law that framing of issues is primarily the duty of the Court. 5. As is apparent from the above noticed facts the learned First Appellate Court came to a definite conclusion that framing of additional issues was essential to determine the real controversy between the parties. It is a settled principal of law that framing of issues is primarily the duty of the Court. Once an issue arises from the pleadings of the parties and is relevant for the purposes of determining the real controversy arising in the suit, an issue has to be framed. It will be more so where issue is based upon a material fact like validity of a will and the right of inheritance. 6. Power to remand is vested in the First Appellate Court under Order 41 Rules 23 and 23-A of the Code. Whether the First Appellate Court should remand a suit for determination afresh in accordance with law under Rule 23 of the said order or may choose to call for a report under Rule 25, is a matter which normally falls in the domain of discretionary jurisdiction of the appellate Court. In the present case the Court has come to a definite conclusion that essential issues which ought to have been framed by the Court have not been framed while they arise for determination before the Court from the pleadings of the parties. The issues even related to the very maintainability of the suit; the suit being not valued properly for the purposes of Court-fees and jurisdiction; registration of the decree and the validity of the Will propounded by the defendants dated 28.3.1984. All these issues not only arise from the pleadings of the parties, but are material facts giving rise to a question of mixed facts and law for determination before the Court. The final decree would obviously depend upon the decision of these issues and parties were granted liberty to lead evidence. In fact the present appellant has hardly any right to challenge the said order as he himself raised the plea before the learned First Appellate Court that material issues have not been framed as they arise from the written statement filed by the defendants and they were not given opportunity to lead evidence as is clear from the opening para of the above noted order. The learned Court has specifically noticed that judgment and decree is liable to be set aside and obviously the findings already recorded would get altered as a result of the findings which the Court would record on the additional issues in accordance with law. 7. It cannot be stated to be an absolute rule of law that the Appellate Court is duty bound to first upset the findings recorded by the learned trial Court in its judgment and then alone pass an order of remand. The result of the findings on existing and additional issues would be so inter-mingled that necessary consequence thereof is to try the suit afresh. In the case of Nirbhay Singh (supra) the Court had noticed that no reason was given why the Court considered it necessary to remand the case for fresh trial in a suit in accordance with law. It is true that reversal of judgment is not a matter of mere formality, but that of substance. The substance would be seen from the reasoning recorded in the order, but in the light of the facts and circumstances of a given case. The cumulative effect of the above discussion is that no error of jurisdiction can be traced in the order under appeal. It is not that the appellate Court has acted in a mechanical manner, but has complied with the rule of providing reasoning substantially. The discretion of the Court if otherwise vested in it and is exercised in consonance with the settled principles of law, the High Court would not normally interfere therewith merely because any other view could also be taken in the discretion of the Court on same facts. The law of procedure must further the cause of justice. Furthermore, no prejudice has been caused to any of the parties as the appellant-plaintiff had preferred an appeal and the objection was raised by the defendant-respondents in regard to framing of issues and opportunity to lead evidence which has been allowed by the first Appellate Court. The parties have opportunity to prove their case in accordance with law. For the reasons afore-stated I see no reason to interfere in the impugned order. The same is dismissed with costs. Appeal dismissed.