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2005 DIGILAW 327 (HP)

ROSHAN LAL v. SUMATI PARKASH

2005-09-07

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. This appeal under Order 43 Rule 1(u) of the Code of Civil Procedure has been filed against the judgment passed by the learned District Judge, Hamirpur in Civil Appeal No. 23 of 2003 decided on 1.4.2005 whereby he has set aside the judgment and decree dated 30.11.2002 passed by the Sub Judge 1st Class (I) Hamirpur in Civil Suit No. 53 of 1994 and remanded the case for fresh decision. 2. The brief facts of the case are that Amar Nath (the plaintiff) who is the predecessor-in-interest of the respondents in the present appeal filed a suit that he is the owner in possession of the suit land entered in Khasra NO.4 min Khatoni Nos 7,8 and 9 Khasra Numbers 468 to 474 in Up-mohal, Hamirpur, Tappa Bajuri, Tehsil and District Hamirpur. It was further alleged that this land is in his possession through various tenants. It was further alleged that he had constructed 5 shops in the year 1970 on the suit land as per plan approved by th& Municipal Committee. According to the plaintiff, he had been using the portion of the suit land adjoining his own land for the purpose of effecting the repairs to his property. The defendants have forcibly started construction over the suit land and they have dug pits as shown in the site plan. According to the plaintiff, the defendants were raising the construction without obtaining the permission from the Municipal Committee or the Town and Country Planning department. It was averred that no set back had been left by the defendants as per municipal bye laws and they were required to leave a sei back even in their own land. It was also claimed that the plaintiff has been enjoying the right to use the land belonging to the defendants adjoining the rear of his shops for the purpose of effecting repairs of his shops. According to the plaintiff, white washing etc. on his own building by using the land of the defendants. 3. The defendants (the present appellants) contested the suit. According to the defendants, the plaintiff has constructed the shops in the year 1974 and in fact encroached upon the land in Khasra No. 466 which was owned by the defendants. It was further alleged that the plaintiff had not constructed the shops according to the approved site plan. 3. The defendants (the present appellants) contested the suit. According to the defendants, the plaintiff has constructed the shops in the year 1974 and in fact encroached upon the land in Khasra No. 466 which was owned by the defendants. It was further alleged that the plaintiff had not constructed the shops according to the approved site plan. The plaintiffs case was denied and according to the defendants, their land was never used for effecting the repairs or white washing the shops. According to the defendants they were raising the construction in their own land in Khasra No. 465 to 467 strictly in accordance with the site plan approved by the Municipal Committee and the Town and Country department. According to the defendants they have also left the necessary set back. 4. On the pleadings of the parties, the trial Court framed the following two issues on 2.12.1994:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP 2. Whether the defendants are entitled for special costs under Section 35-A CPC? OPD. 5. Thereafter the evidence of the parties was recorded. After the entire evidence was recorded the case was fixed for arguments on 16.10.2001. On the said date, the plaintiff filed an application under Order 14 rule 5 CPC for framing of additional issues. This application was allowed and the following issue was framed on 12.11.2001: 2A. Whether the plaintiffs are entitled to the possession of the suit land by way of demolition in case the defendants are found in possession over any portion of the suit land as claimed? OPP. Thereafter the plaintiffs filed an application for leading additional evidence which was registered on 15.5.2002. Thereafter the matter, was heard and decided on 30.11.2002 and the suit of the plaintiff wad dismissed. Aggrieved against the said judgment and decree of the trial Court, the plaintiffs had filed the appeal before the learned District Judge, Hamirpur. The learned lower Appellate Court vide the impugned judgment has held that the trial Court had not framed the necessary issues and has framed the following additional issue:- 2B. Whether the plaintiff have acquired easementary and customary right to effect necessary repairs and white washing of the walls of their shops located on the suit land by using adjoining of the defendants, as alleged? OPP. 6. Whether the plaintiff have acquired easementary and customary right to effect necessary repairs and white washing of the walls of their shops located on the suit land by using adjoining of the defendants, as alleged? OPP. 6. After re-framing the issue, the judgment of the trial Court was set aside and the entire case was remanded to the trial Court for decision a fresh. 7. The judgment of the learned Appellate Court is not at all in consonance with the well settled position in law. This Court has time and again held that remand, of the cases should not normally be done unless specifically warranted under the facts and as circumstances of the case. This Court and the Apex Court have frowned upon the practice of wholesale remand of the case. Order 41 rule 23 CPC. empowers the Appellate Court to remand the case where the original suit has been disposed of on a preliminary point. This rule is not applicable in the present case. Rule 23-A permits the Court to remand a case even when the case has been decided, otherwise then on a preliminary issue. However, the Appellate Court must come to the conclusion that retrial is necessary. According to Order 41 rule 24 where evidence on record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may after resetting the issues, decide the case on the basis of the evidence on record. Rule 25 permits the Appellate Court to frame additional issues and in such an eventuality the appellate court may frame an issue and refer the same for trial to the Court where the original trial was conducted and the trial Court shall return the evidence along with the findings to the Appellate Court. Other than rule 23-A, the rules do not permit the wholesale remand of the case after framing of fresh issues. The judgment of the learned Appellate Court is, therefore, prima facie, not correct. 8. The Next question to be considered is whether fresh issue was required to be framed in this case or not. The original issue were framed in the year 1994. The parties merrily proceeded with the case and led evidence till the year 2001 when the arguments were heard. During this entire period, no objection was raised with regard to the issues framed. The original issue were framed in the year 1994. The parties merrily proceeded with the case and led evidence till the year 2001 when the arguments were heard. During this entire period, no objection was raised with regard to the issues framed. Even when the application for framing additional issues was filed in the year 2001 by the plaintiffs. No fresh issue was sought to be framed with regard to the right of easement or customary right to repair the wall. For right long years, the suit proceeded without the parties complaining that appropriate issues have not been framed. 9. No doubt, issue No.1 which is an omnibus issue is not happily worded. Whoever, the parties were well aware of their respective case and were fully aware what were the questions and issue involved in the case. They have not been taken surprise that they have not been prejudiced by non-framing of the issue. They have led evidence on both the questions of easement as well as the customary rights. There is no complaint that they were prevented from leading such evidence because no issue has been framed in this regard. 10. It is no doubt true that primarily, it is the duty of the Court to frame the issues. As observed above, issue No.1 is not happily framed. However, the parties should be vigilant and should raise objections at the earliest. They cannot permit the proceedings to go on for years and end without raising any objections and then after the matter is decided against one party then raise the point that a particular issue should have been framed. 11. The Apex Court in Nedunuri Kameshwaramma v. Sampati Subba Rao, AIR 1968 SC 884, considered the effect for non-framing of issues and held as follows:- "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 led all 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 that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." 12. This Court in Khem Chand v. Hari Saran and others, AIR 1988 HP 10, held as follows:- "The mere omission, on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in the parties having gone to the trial without knowing that the said question was in issue between them and having, therefore, failed to adduce evidence on that point. 13. Where the lower appellate Court ordered de novo trial on all the issues which were duly framed and on which the parties had adduced evidence and gone to trial and on which findings were also recorded by the trial Court merely because there was failure on the part of the trial Court to frame one of the issues and also an omission on the part of the parties to lead evidence relatable to the said issue, the order of remand was illegal and hence set aside." 14. The law, as is apparent from the decisions cited above, is well settled that where the parties go to trial with the knowledge that a particular question is in issue, and adduce evidence on the issue, then the mere fact that no specific issue has been framed is not a sufficient ground to set aside the judgment. In the present case, also, I find that the parties were well aware of each others case. The evidence by both the sides has been led on all issues including the most important controversies with regard to the easementary and customary rights of the plaintiff to use the defendants land to repair their shops. Both the parties were fully aware that there are the contentions disputes between them. It is true that the issues framed are not happily worded. The Court has framed omnibus issues covering a lot of points. Both the parties were fully aware that there are the contentions disputes between them. It is true that the issues framed are not happily worded. The Court has framed omnibus issues covering a lot of points. Issues are framed were very widely worded and definitely covered the disputes, which the defendant has raised and which are the subject-matter of the issues re-cast/freshly framed by the learned lower Appellate Court. 15. In the present case there was sufficient material on the record for the lower Appellate Court to have decided the matter. Even if the points for determination or the issues are required to be differently worded there was no need to send back the matter for re-trial. The parties have led whatever evidence they wanted to. From the evidence on record, it is clear that the both the parties have led evidence with regard to the right of easement and customary right of the plaintiffs to use the defendants land to repair their shops. The remand order would tantamount to giving further opportunities to the parties to lead evidence. This normally should not be permitted unless the situation so warrants. 16. In view of the above discussion, the order of the learned lower Appellate Court cannot be upheld and the same is set aside. The case is remanded back to the lower Appellate Court for decision of the case afresh on merits. The contentions with regard to the right of the easementary and customary right of the plaintiffs to use the defendants land to repair their shops have necessarily to be decided by the lower Appellate Court. The lower Appellate Court shall decide all questions arising in the case and raised by the parties. 17. Before parting, I would like to make it clear that this Court has not expressed any opinion on the merits of any of the issues arising for decision in this suit or appeal and what has been stated above, is only for the purpose of demonstrating that no remand was required. 18. The appeal is disposed of in the aforesaid terms. The parties are directed to appeared before the District Judge, Hamirpur on 30th September, 2005. The records of the trial Court be returned forthwith so as to reach there well before the date fixed.