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2002 DIGILAW 210 (HP)

Hiru v. Mansa Ram

2002-07-29

K.C.SOOD, R.L.KHURANA

body2002
JUDGMENT : Kuldip Chand Sood, J. – 1. This appeal arises out of the order of remand made by learned Additional District Judge, Mandi, by his judgment dated January 3, 2002. To appreciate the controversy, few facts may be noticed : It appears, plaintiffs Mansha Ram and Gaddi Ram, respondents in this appeal, brought a suit for declaration and permanent injunction against defendants Heeru and others, appellants herein, for the following reliefs : (a) A declaration that the plaintiffs were the non-occupancy tenants of defendant No. 1 Heeru over the suit land and have acquired the ownership rights in view of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. The entries in the revenue record to the contrary were wrong and illegal; (b) the sale deed executed by the defendant No. 1 Heeru through his attorney, in favour of defendant No. 2 Dole Ram in respect of Khasra Number, 92 and 94 was illegal, null and void; (c) a permanent prohibitory injunction against the defendants restraining them from interfering with the peaceful possession of the plaintiffs over the suit land in any manner'". 2. The suit was resisted by the defendants. The learned trial Court settled the following issues for determination : 1. Whether the plaintiffs were in possession of the land in dispute as tenant, as alleged ? OPP. 2. If issue No. 1 is roved, whether the plaintiffs have become owners of the land in dispute under Section 104 of the H.P. Tenancy and Land Reforms Act ? OPP. 3. Whether revenue entries showing the defendant No. as owner in possession are wrong ? OPP. 4. Whether the plaintiffs have no locus-standi to file the suit and the present suit is not legally maintainable ? OPD. 5. Relief. 3. Learned trial Court under issue No. 1 to 3 found that the plaintiffs were not able to rebut the entries in the record of rights and held that the plaintiffs were not non-occupancy tenants as claimed by them and, therefore, they cannot be said to have become owners of the suit land and that the revenue entries cannot be said to be wrong. 4. 4. Dis-satisfied, the defendants carried an appeal before the learned District Judge which was decided by the learned Additional District Judge by his impugned judgment remanding the case to the trial Court "for decision afresh after affording the parties an opportunity of being heard". The only reason, which weighed with the learned First Appellate Court to remand the case in its entirety, was that the trial Court recorded to the learned Additional District Judge was not permissible in law. Learned First Appellate Court was of the view that it was necessary for the trial Court to have given findings on each issue separately in view of the provisions of Rule 5 Order 20 of the Civil Procedure Code. Learned First Appellate Court relied upon M/s. Fomento Resorts and Hotels Ltd. v. Gustavo Ranato da Cruz Pinto and others, AIR 1985 Supreme Court 736. 5. Dis-satisfied, the defendants are in appeal. 6. Having heard Mr. Rajneesh Chauhan appearing vice counsel for the appellants and Mr. Sanjeev Kuthiala, counsel for the respondents, we are of the view that the learned First Appellate Court was not right in remanding the case to the trial Court for fresh decision. 7. It may be noticed that the trial Court settled as many as four issues for trial and took up issues No. 1 to 3 for decision together for convenience as the issue were inter-dependent. Learned First Appellate Court took a view that the trial Court did not give findings on these three issues separately and had decided issues No. 1, 2 and 3 simultaneously and violated the requirement of Rule 5 Order 20 of the Civil Procedure Code. Rule 5 Order 20 of the Code reads : "Court to state its decision on each issue-In suits in which issues have been framed, the Court shall state is findings or decision, with the reasons therefore, upon each separate issues, unless the findings upon any one or more of the issues is sufficient for the decision of the suit". 8. A bare perusal of this rule shows that the Court has to give decision on each of the issues alongwith reasons thereof unless the findings upon any one or more of the issues are sufficient for the decision of the suit. 8. A bare perusal of this rule shows that the Court has to give decision on each of the issues alongwith reasons thereof unless the findings upon any one or more of the issues are sufficient for the decision of the suit. There is nothing in the language of rule 5 of order 20 which indicate that two or more issues cannot be clubbed together for discussion and findings in the context of the evidence on record. What is required by rule 5 is that the Court has to give its findings on all the issues unless the findings on any one or more of the issues are sufficient for the decision of the suit. The provision is aimed to curb un-necessary protraction of litigation. The true import of rule 5 of order 20, as pointed out by a Division Bench of Patna High Court in Ram Ranbijaya Prasad Singh v. Sukar Ahir, AIR 1947 (34) Patna 334, is that the Courts of fact must. decide all the issues of fact which arise between the parties so that if the appellate Court takes a different view, the parties are saved from further harassment. However, clubbing of most of the issues and writing a conclusion at the end of the judgment would not contravene rule 5 of order 20 of the Code no will it vitiate the findings for that reason. 9. It is true that some times Judicial Officers as a convenience club together all or most of the issues and write a judgment though not often without applying their minds on a particular matter that has to be decided under each issue and then conclusions on several issues are given at the end of the judgment but even such a judgment cannot be said to contravene the provisions of rule 5 of Order 20 of the Code which requires no more than that reasons should be given for the findings in respect of each issue. Such a judgment may be open to criticisms but it cannot be said to be no judgment in the eyes of law. 10. In the case, if the Learned First Appellate Court had taken trouble to go through paras 8 to 10 of the judgment, it would have been found that the reasons on the findings arrived at by the trial Court were given in these paragraphs after discussing the evidence. 10. In the case, if the Learned First Appellate Court had taken trouble to go through paras 8 to 10 of the judgment, it would have been found that the reasons on the findings arrived at by the trial Court were given in these paragraphs after discussing the evidence. Thus, the very foundation on the basis of which the Learned First Appellate Court remanded the case to the trial Court for re-writing the judgment after hearing the parties was non-existent. 11. The Apex Court in Fomento Resorts, on which the Learned First Appellate Court heavily relied, ruled that it is always desirable to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rests its decision on one single point. Their lordships observed : "In a matter of this nature where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, It is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on the single point". 12. In that case a notification was challenged on several grounds in a writ petition. The High Court did not decide all the grounds. It was in this context that this observation was made by the Apex Court. 13. In the facts of this case, the ratio in Fomento Resorts is not applicable. In this case the findings on all the issues were given by the learned trial Court though issues No. 1 to 3 were clubbed together for discussion. We see no illegality in that. 14. The Apex Court Smt. Swaran Lata Ghosh v. Harendra Kumar Banerjee & Anr., AIR 1969 Supreme Court 1167 observed that in a suit where pleadings of the parties raised substantial issues of fact for trial, the trial Court is bound to decide those issues by giving consent reasons. A mere order deciding the matter in dispute unsupported by reasons is no judgment in the eyes of law and it cannot be said that there is a legal trial of the case. A mere order deciding the matter in dispute unsupported by reasons is no judgment in the eyes of law and it cannot be said that there is a legal trial of the case. Thus, what is expected of a Court is that a in a judicial trial, the Court must not only reach a conclusion which he thinks is just and proper but must also record the reasons for his conclusions. In other words, a judgment or order deciding the matter in dispute unsupported by reasons is no judgment at all. It also enables an appellate Court to determine whether the facts have properly been ascertained and law was correctly applied. 15. As noticed earlier, in the present case, the findings recorded by the learned trial Court against issues No. 1 to 3 cannot be said to be uninformed by reasons though such reasons have been given while discussing all these issues together. 16. This apart, this Court has time and again impressed upon the first Appellate Courts that it is not open an appellate Court to make an open remand save and except where : (a) Where trial Court disposed of a suit by recording its finding son a preliminary issue without deciding other issues and findings on preliminary issue is reversed in appeal as contemplated under rule 23 of Order 41; (b-i) the trial Court disposed of a case otherwise than on a preliminary point; and (b-ii) the decree is reversed in appeal & the re-trial is considered necessary by the Appellate Court as contemplated under rule 23-A of Order 41 of the Code. 17. Thus, all the cases of wholesale remand are governed by rule 23 and 23-A of Order 41. Present was not a case which could fall either under Rule 23 or Rule 23-A of order 41 of the Code. 18. For the reasons recorded above, we are of the view that the learned first Appellate Court was not right in remanding the case to the trial Court for deciding the case afresh after hearing the parties. The Learned First Appellate Court ought to have perused the reasoning given by the trial Court for arriving at finding son issues No. 1 to 3 and thereafter proceeded to decide the appeal in accordance with law. 19. In result, the appeal is allowed. The impugned judgment of learned Additional District Judge, Mandi is set aside. The Learned First Appellate Court ought to have perused the reasoning given by the trial Court for arriving at finding son issues No. 1 to 3 and thereafter proceeded to decide the appeal in accordance with law. 19. In result, the appeal is allowed. The impugned judgment of learned Additional District Judge, Mandi is set aside. The case shall go back to the learned Additional District Judge Mandi who shall register the case at its original number and dispose of the appeal on merits in accordance with law. 20. There will be no orders as to costs. 21. Parties shall appear before the learned Additional District Judge on August 26, 2002. The record of the trial Court and the First Appellate Court shall be remitted back to the first Appellate Court immediately.