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2001 DIGILAW 211 (HP)

DURGA DASS v. MATHU

2001-08-28

A.K.GOEL, KAMLESH SHARMA

body2001
JUDGMENT Kamlesh Sharma, J. (Oral):-Appellant is the defendant whereas respondent is the plaintiff and they will be referred to as such in this judgment. The defendant is aggrieved by the judgment dated 21.9.2000 passed by the Additional District Judge, Shimla, whereby the appeal of the plaintiff was allowed and the decree and judgment dated 2.7.1996 of the Senior Sub Judge, Shimla, was set aside and the case was remanded to him with the direction to decide the same afresh in the light of the observations made in the impugned judgment. The Senior Sub Judge had dismissed the suit. 2. In the suit claiming himself to be owner in possession, the plaintiff had prayed for decree of permanent prohibitory injunction restraining the defendant from interfering in any manner with his ownership and possession over the suit land which is comprised in Khasra No. 297, measuring 6-12 bighas, situated at mouza Manner, Tehsil and District Shimla. The case of the plaintiff was that on the basis of wrong revenue entries recording him as non-occupancy tenant, the defendants had been threatening to interfere with his ownership and possession over the suit land. On the other hand, the case of the defendant on merits was that he had been recorded in possession as Gair Maurisi for the last more than 15 years to the knowledge of the plaintiff as a result of which he has also acquired proprietary rights under the H.P. Tenancy and Land Reforms Act. It was also pleaded by the defendant that the plaintiff had sold his entire ancestral land in village Mannar, Tehsil and District Shimla, in the year 1964 to the defendant and also put him in possession of the suit land and later on consented to get him recorded as Gair Maurisi1 and during proceedings before the Assistant Collector IInd Grade he further consented for conferment of proprietary rights in his favour. The defendant also took number of preliminary objections. 3. On the pleadings of the parties, the following issues were framed:- (1) Whether the plaintiff is entitled to injunction prayed for? OPP. (2) In case the plaintiff is found to have dispossessed during the pendency of the suit, whether the plaintiff is entitled to the decree for possession ? OPP. (3) Whether this Court has no jurisdiction as alleged ? OPD. (4) Whether the plaintiff is estopped from filing the suit as alleged V OPD. OPP. (2) In case the plaintiff is found to have dispossessed during the pendency of the suit, whether the plaintiff is entitled to the decree for possession ? OPP. (3) Whether this Court has no jurisdiction as alleged ? OPD. (4) Whether the plaintiff is estopped from filing the suit as alleged V OPD. (5) Whether the plaintiff has no cause of action ? OPD. (6) Relief. 4. On the basis of oral and documentary evidence on record, issues No. 1,2,4 and 5 were decided against the plaintiff and issue No.3 in favour of the defendant holding that having failed to prove that he is in possession of the suit land, the plaintiff is not entitled to decree for permanent prohibitory injunction against the defendant and in view of his admission contained in his statement Ext. DA, he is estopped from filing the suit and has no cause of action, however, the jurisdiction of the Civil Court to try and entertain the suit was upheld. 5. Feeling aggrieved by the decree and judgment of the Senior Sub Judge, the plaintiff filled appeal which was allowed and the case was remanded for decision afresh on the ground that the trial court had failed to frame proper issues as a result of which the case of the plaintiff was prejudiced. After referring to the pleadings of the parties, the Addl. District Judge in para 15 of his judgment has made the following observation:- ".....The trial Court has not taken all the above referred material pleadings of the parties into consideration while framing the issues and allowed the parties to lead evidence, and thus, definitely, the appellant has suffered prejudice while leading evidence, and as such, the impugned judgment and decree is unsustainable. The trial Court should take into consideration the above referred material pleadings of the parties and should frame fresh issues, as may be arising cut of the pleadings and proceed to decide the suit afresh. Paint No.1 is accordingly answered in the affirmative." 6. After hearing the learned Counsel for parties and going through the record, we find that in the facts and circumstances on record, even remand was not warranted what to talk of wholesale remand as has been done in the present case. Paint No.1 is accordingly answered in the affirmative." 6. After hearing the learned Counsel for parties and going through the record, we find that in the facts and circumstances on record, even remand was not warranted what to talk of wholesale remand as has been done in the present case. There is substance in the submission made by the Learned Counsel for the defendant that the reasons given by the Additional District judge for ordering Wholesale remand are not germane as non-framing of issues did not cause any prejudice to the plaintiff while leading his evidence because he very well know what was his case in the plaint and what was the defence set up by the defendant in the written statement. 7. On the other hand, the submission made by the learned Counsel for the plaintiff in support of the impugned judgment is without any substance that non-framing of issues arising out of the pleadings, such as, whether the revenue entries showing the defendant in possession as non-occupancy tenant are wrong, illegal and Inoperative against the ownership and possession of the plaintiff; whether the defendant has been non-occupancy tenant over the suit land and has acquired proprietary rights and also whether the plaintiff in his statement Ext. DA had admitted the defendant as non-occupancy tenant over the suit land and had given his consent for the conferment of proprietary rights on him, has in any manner caused prejudice to the plaintiff in leading his evidence 8. We find that the scope of issue No. 1 is very wide and in order to prove that he is entitled to the injunction prayed for, the plaintiff knew that he was to adduce evidence not only to prove his ownership and possession over the suit land, but also to rebut the revenue entries recording the defendant as non-occupancy tenant and also explain the alleged admission contained in his statement Ext. DA given before the Assistant Collector IInd. Grade, Shimla, reference whereof was clearly made in paragraph 6 of the written statement. 9. No doubt it is the duty of the court to frame proper issues arising out of the pleadings, yet mere omission to frame an issue is not fatal to the trial of the suit. DA given before the Assistant Collector IInd. Grade, Shimla, reference whereof was clearly made in paragraph 6 of the written statement. 9. No doubt it is the duty of the court to frame proper issues arising out of the pleadings, yet mere omission to frame an issue is not fatal to the trial of the suit. If omission to frame a particular issue affects the disposal of the suit on merits, the case must be remanded to the trial court for a fresh trial, otherwise, where the parties go to trial fully knowing and understanding the rival contentions and lead all the evidence far and against, non-framing of any specific issue in respect of any of those contentions, does not vitiate the trial. The case in hand fails in the later category. 10. In Nedunuri Kameswararnma Vs. Sampati Subba Rao, A.I.R 1963 Supreme Court 884, the learned Judges of the Supreme Court have held in paragraph 6 of the judgment :- ".......No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and the evidence not only in support of their contentions, but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was mis-trial which vitiates proceedings." Similar view was taken by the Supreme court in Kunju Kesavan Vs. M.M. Philip and others, A.I.R. 1964 Supreme Court 164. 11. Further, after going through the evidence on record we find that it is sufficient to enable the Additional District Judge to pronounce the judgment and he may after resetting the issues. If necessary, decide the appeal as provided under Rule 24 of Order 41 CPC. In our view, it is not a case even for partial remand as is envisaged under Rule 25 of Order 41 CPC. 12. In the result, this appeal is accepted and the judgment dated 21.9.2000 is set aside and the case is remanded back to the Additional District Judge, Shimla, to restore the appeal to its original number and decide it in accordance with law. The parties are directed to appear before the Additional District Judge on 24.9.2001. Records be sent back. No order as to costs.