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2001 DIGILAW 361 (HP)

PREM KUMAR v. PARKASH CHAND

2001-12-03

C.K.THAKKER, M.R.VERMA

body2001
JUDGMENT C.K. Thakker, C.J.—This appeal is filed against the judgment dated 30th June, 2001 in Civil Appeal No. 83 of 1997 passed by the Additional District Judge, Mandi, District Mandi, H.P. 2. The appellants were the original defendants. One Parkash Chand Sharma, son of late Bhawani Dutt Sharma, respondent No. 1 herein filed a suit being Civil Suit No. 7 of 1995 in the Court of Sub Judge, 1st Class, Karsog for permanent prohibitory injunction against the defendants as also against respondents 2 and 3, proforma defendants. The trial Court framed the following issues:— 1. Whether the plaintiff has got 1 /3rd share in the suit land as alleged? If so its effect? OPP. 2. Whether the plaintiff is entitled to the decree of permanent prohibitory injunction as alleged? OPP. 3. Whether the plaintiff and defendants got 1/2 share each in family partition which is allegedly taken place on 29.6.1978 if so its effect? OPD. 4. Whether the plaintiff is estopped by his act and conduct from instituting the present suit? OPD. 5. Whether there is no cause of action accruing in favour of the plaintiff to file the present suit? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. Relief. 3. After hearing learned Counsel for the parties and appreciating the evidence on record, the trial Court decided issues No. 1, 2, 5 and 6 in the negative, whereas, issues No. 3 and 4 were answered in the affirmative. As a result of the findings, the trial Court was pleased to dismiss the suit. 4. Being aggrieved by the decree passed by the trial Court, the original plaintiff-respondent No. 1 herein, preferred an appeal in the District Court. 5. The appeal came up for hearing before the Additional District Judge, Mandi, who by a judgment impugned in the present appeal, allowed it. In para 12, the appellate Court stated : "In view of my findings on point No. 1 above, impugned judgment and decree under challenge is set aside. Suit is remanded back to the trial Court for fresh disposal after framing material and essential issues as may be arising out of the pleadings of the parties and after affording two opportunities each, to the appellant and respondents to produce further evidence, as may be desired, and to dispose of the suit within a period of one year positively. Suit is remanded back to the trial Court for fresh disposal after framing material and essential issues as may be arising out of the pleadings of the parties and after affording two opportunities each, to the appellant and respondents to produce further evidence, as may be desired, and to dispose of the suit within a period of one year positively. Parties are directed to appear before the trial Court on 19.7.2001. The record of the trial Court alongwith copy of this judgment be sent forthwith and file of this Court, after completion, be consigned to Record Room". 6. Learned Counsel for the appellants contended that the directions issued by the learned Additional District Judge are not in accordance with the provisions of Rules 23, 23-A or 25 of Order 41, Code of Civil Procedure, 1908 (hereinafter referred to as the Code). He submitted that the appellate Court can make an order of remand either under Rule 23 or 23-A or Rule 25 of Order 41 of the Code. 7. So far as Rule 23 is concerned, the said provision obviously is not applicable to the case in hand in view of the fact that the trial Court had not disposed of the suit on a preliminary point. The question, therefore, is either the order is passed by the first appellate Court under Rule 23-A or Rule 25 of Order 41 of the Code. But, in either case, contended the learned Counsel, it was obligatory on the part of the first appellate Court to frame issue(s). If the first appellate Court was of the view that the decree passed by the trial Court was liable to be reversed which had been passed on merits, it was open to the appellate Court if it thought fit to remand the matter by directing what issue or issues should be framed in the case so remanded and by sending a copy of the judgment or order to the Court from whose decree the appeal was preferred, i.e., to the trial Court. But the said course has not been adopted by the first appellate Court. But the said course has not been adopted by the first appellate Court. Similarly, Rule 25 has also not been invoked inasmuch as it was incumbent upon the first appellate Court to frame issue or issues and refer the same to the trial Court from whose decree the appeal is preferred by directing the said Court to take additional evidence if required, proceed to try such issue or issues and return the evidence to the appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate Court. That is, however, not done. Hence, in either case, the order passed by the first appellate Court deserves to be quashed and set aside. 8. We find considerable force in the argument of the learned Counsel for the appellants. In our opinion, in either case, i.e. either under Rule 23-A or under Rule 25 of Order 41 of the Code, the first appellate Court ought to have framed additional issue(s) and ought to have issued necessary directions. In our considered opinion, the order passed by the first appellate Court is not in conformity with law. It is, therefore, liable to be quashed and set aside. Accordingly, the appeal filed by the appellants stands allowed. The order passed by the Additional District Judge, Mandi, dated 30th June, 2001 is hereby quashed and set aside by directing the appellate Court to pass an appropriate order by framing necessary issue(s) and by making necessary directions to the trial Court. In the facts and circumstances of the case, no order as to costs. CMP No. 541 of 2001 9. In view of the order passed in the main matter this CMP does not survive and interim order stands vacated. So far the construction over the land is concerned, till the disposal of the litigation, no further construction will be made by the parties without the prior permission of the Court. 10. The parties are directed to appear before the first Appellate Court on 24th December, 2001. Copy Dasti. Appeal allowed.