Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 65 (HP)

NAGAR MAL v. BIMAL KUMAR

2005-03-23

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J, :- This appeal has been filed against the order dated 9.3.2004 passed by learned District Judge, Solan vide which the judgment and decree passed by the trial Court were set aside and the case remanded to the trial Court for decision afresh after framing issues regarding the will and affording opportunity to the parties to lead evidence. 2. The facts, which are relevant for the decision of the present appeal are that the NCB forms had filed a suit for declaration and for perpetual injunction. The suit was contested by the defendants. After hearing both the sides, the learned trial Court, vide judgment and decree dated 26.9.2002, partly decreed the suit of the plaintiff-appellants and the plaintiff-appellants and the Performa-defendants were declared to be the legal heirs of Madan Lai having succeeded to the estate of Madan Lai in equal shares and the mutation in respect of the estate of Madan Lai in favour of Shanta Devi was declared as null and void and the defendants were restrained from alienating, transferring or creating any charge exceeding their share in the suit property. Aggrieved against the said judgment and decree dated 26.9.2002 passed by the trial Court, the defendants filed an appeal. The learned District Judge vide his order dated 9.3.2004 accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case back to the trial Court and remanded the case back to the trial Court with a direction to frame issue regarding will and to decide the suit afresh after affording opportunity to the parties to lead evidence. Aggrieved against this order of the learned District Judge, the plaintiffs have filed the present appeal in this Court. 3. I have heard the learned Counsel for the parties and have gone through the record carefully. 4. The learned Counsel appearing for the plaintiff-appellants submitted before me that the learned District Judge has erred in law in accepting the appeal, setting aside the judgment and decree of the trial Court and remanding the case to the trial Court for re-decision after framing issue regarding will and affording opportunity to the parties to lead evidence. 4. The learned Counsel appearing for the plaintiff-appellants submitted before me that the learned District Judge has erred in law in accepting the appeal, setting aside the judgment and decree of the trial Court and remanding the case to the trial Court for re-decision after framing issue regarding will and affording opportunity to the parties to lead evidence. It has been submitted that under Order 41 Rule 25 CPC, the appellate Court could have framed the additional issue and could have referred the same for trial to the trial Court, permitting the trial Court to take additional evidence and to try such issue and thereafter to return the evidence to the appellate Court together with its findings thereon and the reason therefor. Reliance has been placed on the law laid down by Division Benches of this Court in the cases of Prem Kumar and others v. Parkash Chand and others, 2002(3) Shim. L.C. 358 arid Parma Nand v. Arvind Diwan and another, Latest HLJ 2003 (HP) (DB) 40. 5. After hearing the learned Counsel for the parties and perusing the record, in my opinion, the present appeal must succeed, the order dated 9.3.2004 passed by the learned District Judge must be set aside and the case sent back to the learned District Judge for deciding the appeal afresh in accordance with law. Order 41 Rule 25 reads as under :- "41(25) - Where appellate Court may frame issues and refer them for trial to Court whose decree repealed from - Where the Court from whose decree the appeal is preferred has omitted to frame or try and issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such, court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefore (within such time as may be fixed by the appellate Court or extended by it from time to time)." 6. From a perusal of the above, it would be clear that where the appellate Court feels that the trial Court had omitted to determine any question of fact and the appellate Court considers it essential for the right decision of the suit, -the appellate Court may frame issues and refer the same for trial to the trial Court and shall direct such Court to take additional evidence and thereafter the trial Court shall proceed to try such issues and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor. In the present case, the learned District Judge found that the question regarding validity of the will could not be gone into without framing a specific issue on the will and resultantly the learned District Judge, set aside the judgment and decree of the trial Court and remanded the case to the trial Court with a direction to frame issue regarding will and afford opportunity to the parties to lead their evidence. In my opinion, the procedure adopted by the learned District Judge is contrary to the provisions of Order 41 Rule 25 CPC referred to above. Furthermore, in Prem Kumars case (supra), it was held by a Division Bench of this Court that the first appellate Court ought to have framed additional issue and ought to have issued necessary direction as provided under Order 41 Rule 25 CPC and the learned District Judge having failed to do so, the order passed by the first appellate Court was not in: conformity with law and was liable to be quashed and set aside. In Parma Nands case (supra), it was held by a Division Bench of this Court that Rule 25 of Order 41 provides for a situation where the trial Court has failed to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was necessary for right decision of the suit and in such an eventuality, the appellate Court may settle the issue and remand the case to the trial Court for determination of issue so settled. It was further held in the said authority that the appellate Court could not resort to the "wholesale remand of the case". It was further held in the said authority that the appellate Court could not resort to the "wholesale remand of the case". Thus, it would be clear that the order passed by the learned District Judge in the present case was not only against the provisions of Order 41 Rule 25 CPC but also against the law settled by this Court in the cases referred to above. 7. For the reasons recorded above, the present appeal is allowed. The order dated 9.3.2004 passed by the learned District Judge is set aside and the case is sent back to the learned District Judge for deciding the appeal afresh keeping in view the provisions of Order 41 Rule 25 CPC and the observations made above. 8. Parties through their learned Counsel are directed to appear before the learned District Judge, Solan on 29.4.2005 for further proceedings in accordance with law. It is directed that the learned District Judge will proceed to decide the matter without any further delay. It is further directed that in case the learned District Judge frames an additional issue and sends the case to the trial Court for recording evidence etc., in that eventuality, the trial Court shall expedite the disposal of the matter before him.