Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 108 (HP)

GOPAL LAL v. RAVI DUTT

2005-04-27

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. (Oral) :- This appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure is directed against the judgment of the learned District Judge, Bilaspur in Civil Appeal No. 104 of 2000 whereby he has accepted the appeal filed by the present respondent and remanded the case to the trial Court for rehearing the arguments and to decide the same afresh. 2. The facts necessary for disposal of the case are that Jagdish father of the present respondent was allotted 3362.50 sqr. meters of land in Khasra No. 1012, Up-mohal, Bilaspur, Tehsil Sadar, District Bilaspur by way of Nautor. He sold half share of this land to the present appellants vide sale deed executed on 25.6.1987. The present appellants who are the plaintiffs filed a suit alleging that they are the joint-owners in possession with the defendant of the entire suit land since the same had not been partitioned. It was further alleged that the defendant was trying to take forcible possession of the suit land. 3. The defendant resisted the suit and raised various objections. It was pleaded that since Khasra No. 1012 had been granted by way of nautor to the father of the defendant on 12.9.1973 and since the sale deed was executed within a period of 15 years from the date of grant of nautor, the said sale is illegal and void and did not confer any right, title or interest on the plaintiffs. The defendant claimed that he was the sole heir of his father late Jagdish Chand and therefore, he is entitled to claim his fathers share. He has also filed a counter-claim praying that the sale deed executed by his father on 25.6.1987 in favour of the plaintiffs be declared null and void since it is without any consideration and could not have been executed within 15 years from the date, the nautor was granted. The learned trial Court framed as many as 12 issues. Issues No. 1, 10 and 11 are as under:- "1. Whether the plaintiffs have cause of action to file the present suit ? OPP 10. Whether the plaintiffs have one half share in the suit land as alleged ? OPP 11. Whether the sale deed is in violation of the terms of the patta, if so, its effect ? OPD." 4. Whether the plaintiffs have cause of action to file the present suit ? OPP 10. Whether the plaintiffs have one half share in the suit land as alleged ? OPP 11. Whether the sale deed is in violation of the terms of the patta, if so, its effect ? OPD." 4. The trial Court decided all the issues in favour of the plaintiffs and consequently held the plaintiffs entitled to the decree for injunction and declaration. The trial Court has also held while deciding issue No. 8 that the counter-claim was. barred by limitation. 5. The defendant being aggrieved by the judgment and decree of the trial Court filed an appeal before the lower appellate Court. The learned lower appellate Court vide the impugned judgment has held that the trial Court had wrongly clubbed issues No. 1, 10, 11 together. According to the learned lower appellate Court separate findings should have been given on all these issues. He has relied upon a judgment of this Court in Shri Om Prakash and others v. State of Himachal Pradesh and others, 2000(2) Shim. LC. 240: 2000(1) Cur LJ. (H.P.)(D.B.)352. Thereafter he has remanded the case back to the trial Court for fresh decision in accordance with law. In the order of remand, it is clearly stated that no fresh evidence is to be recorded and only arguments are to be re-heard and judgment is to be pronounced. 6. At this stage of the case, I would not like to express any opinion on the merits of the case since this appeal is against an order of remand. This is for the appropriate Court to adjudicate Upon. However, the order of the learned lower appellate Court is totally illegal and without jurisdiction. 7. A perusal of the order 41 Rule 23 CPC shows that the appellate Court has power to remand a case in case the trial Court has decided the suit on preliminary points. In case the decree is reversed in appeal the appellate Court has the authority to remand the case and ta give direction to the trial Court as to on what issues the case is to be tried. 8. Order 41 Rule 23A CPC provides that remand can also be made when the case has been decided otherwise then on preliminary issue and the decree is reversed in an appeal and re-trial is considered necessary. 8. Order 41 Rule 23A CPC provides that remand can also be made when the case has been decided otherwise then on preliminary issue and the decree is reversed in an appeal and re-trial is considered necessary. In the present case even according to the learned lower appellate Court no re-trial was necessary since it has only directed that arguments be reheard and the case be decided. 9. Rule 25 of Order 41 provides that the appellate Court can remand the case when it feels that some new issues have to be framed and in such eventuality, the appellate Court can refer the case to the trial Court for deciding such issues. 10. This Court as well as the Apex Court have always deprecated the practice of wholesale remand of the case. In the present case, the situation is worse. No case1 for remand under Order 41 Rules 23, 23A and 25 is made out. The case is squarely covered under Order 41 Rule 24, which reads as follows:- "24. Where evidence on record sufficient, Appellate Court may determine case finally. When the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than on which the appellate Court proceeds. 11. The entire evidence was there on record. The lower appellate Court has not felt it necessary while remanding the case that the trial Court should record further evidence. The judgment of the trial Court may be right or wrong. This is for the lower appellate Court to decide. Once the entire evidence was on record, it could have re-settled or reframed the issues if so required and given its findings on the merits of the case. The order of remand was not at all called for. The lower appellate Court could not have abdicated its power and duty by remanding the case to the trial Court. 12. Learned counsel for the respondent has placed reliance on the judgment relied upon by the lower Appellate Court i.e. Shri Om Parkash and others v. State of Himachal Pradesh and others case (supra). The lower appellate Court could not have abdicated its power and duty by remanding the case to the trial Court. 12. Learned counsel for the respondent has placed reliance on the judgment relied upon by the lower Appellate Court i.e. Shri Om Parkash and others v. State of Himachal Pradesh and others case (supra). It is true that in the said case this Court had observed that the trial Court after framing the issues is supposed to give its findings or decision with reasons upon each separate issue. The observations have to be read in the context of facts of the case. From the judgment it appears that the trial "Court had clubbed five issues, some of which had no concern with each other and it gave its finding without giving any reasons. The Court held that the trial Court had simply enumerated the evidence and given its conclusion, without giving any reasons. As such it was no judgment in the eyes of law. The main objection which weighed with the Court was the absence of reasons. It is in this context that observations were made that it is desirable that findings should be given separately on each issue. 13. In the present case, the situation is entirely different. The trial Court has given its issue-wise determination in para 5 wherein it has given the result of its findings on each issue No. 1,10 and 11 have been clubbed together. It cannot be said that these issues were unrelated. The cause of action as envisaged in issue No.1 would only arise if the plaintiff had half share in the suit land which would be available if the sale deed was accepted to be correct. Therefore, there is nothing wrong in deciding these issues together. The trial Court has given its reasoning in paras .7 and 8 of the judgment. This Court is not expressing any view as to whether this reasoning is correct or incorrect. The reasoning is there. 14. Another aspect which must be kept in mind is that while deciding issue No. 9. the trial Court has held that the counter-claim is barred by time. Therefore, detailed reasoning with regard to this aspect need not have been given while discussing issues No. 1,10 and, 11. 15. The reasoning is there. 14. Another aspect which must be kept in mind is that while deciding issue No. 9. the trial Court has held that the counter-claim is barred by time. Therefore, detailed reasoning with regard to this aspect need not have been given while discussing issues No. 1,10 and, 11. 15. In view of the above discussion, the judgment/order of the lower Appellate Court dated 1.11.2004 is set aside and it is directed to dispose of the appeal on merits in accordance with law. Since the appeal relates to the year 2000, it is expected that the appeal shall be decided as expeditiously as possible as and in any case not later than 31-12-2005. 16. The parties through their learned counsel are directed to appear before the lower Appellate Court on 30th May, 2005. The record of the case be sent to the lower Appellate Court so as to reach there well before the date fixed.