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2008 DIGILAW 879 (MAD)

K. v. Shetty VS Woodbrier Estates Limited

2008-03-10

M.VENUGOPAL, SUDHANSU JYOTI MUKHOPADHAYA

body2008
Judgment :- M. Venugopal, J. This Original Side Appeal is directed by the appellant/plaintiff as against the Judgment and Decree dated 28.03.2001 passed by the learned single Judge in C.S.No.878 of 1987. 2. The learned single Judge in his Judgment dated 28.03.2001 in C.S.No.878 of 1987 has inter-alia observed that the appellant/plaintiff is not entitled to the reliefs claimed for and that the suit is misconceived and accordingly, dismissed the suit with costs of defendants 1,2 and 4/respondents 1,2 and 4. Aggrieved against the Judgment and Decree dated 28.03.2001 passed by the learned single Judge in C.S.No.878 of 1987, the plaintiff as appellant has preferred this appeal. 3. The appellant/plaintiff in the suit has prayed for the relief of directing the defendants 1, 3 to 5/respondents jointly and severally or any of them as may be found liable to pay to the appellant/plaintiff the whole sum of Rs.21,07,676.80 or such sum out of the aforesaid amount as may be apportioned between the said defendants/respondents together with interest at 18% per annum on the said amount from the date of suit till date of payment and for the relief of mandatory injunction directing the defendants 1, 4 and 5/respondents to issue equity shares to the extent of Rs.10,00,000/- with the second defendant out of the sum standing to the credit of the first defendant/first respondent with the second defendant/second respondent and for costs. 4. In the suit, five issues were framed and on appellant/plaintiffs side P.W.1-K.V.Shetty was examined and Exs.P.1 to P.18 were marked. On the side of defendants, no one was examined as witness and Ex.D.1 was marked. 5. 4. In the suit, five issues were framed and on appellant/plaintiffs side P.W.1-K.V.Shetty was examined and Exs.P.1 to P.18 were marked. On the side of defendants, no one was examined as witness and Ex.D.1 was marked. 5. According to the learned counsel for the appellant/ plaintiff, the Judgment and Decree dated 28.03.2001 passed by the learned single Judge in C.S.No.878 of 1987 suffers from material irregularity and that the same is contrary to law and evidence and that the suit has not been decided on the basis of evidence and contentions raised and that the learned single Judge has not taken into consideration the evidence of P.W.1 (appellant/plaintiff) and that in the absence of any oral evidence on the part of defendants/ respondents, an adverse inference ought to have been drawn against the respondents/defendants and that the evidence of P.W.1 ought to have been accepted by the learned single Judge and that no finding has been given on each and every issue and therefore, there has been a miscarriage of justice. 6. In the suit, defendants 3, 5 and 6/respondents 3,5 and 6 have not appeared either in person or through counsel. 7. It is not out of place to point out that as per Or. XIV (2) of C.P.C., the court is to pronounce Judgment on all issues. As a matter of fact, it is incumbent on the Court to adjudicate the case on all issues, though the decision may depend on one issue, in the considered opinion of this Court. Admittedly, in the instant case on hand, five issues were framed in the suit. In terms of Or.20 R.5, the Court is to state its decision on each issue. In fact, the Or.20 R.5 of C.P.C. is mandatory in its language, that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issue have to be answered by the finding supported by reasons. In terms of Or.20 R.5, the Court is to state its decision on each issue. In fact, the Or.20 R.5 of C.P.C. is mandatory in its language, that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issue have to be answered by the finding supported by reasons. However, an exception is visualised under Or.14 R.2 C.P.C. where an issue relating to the jurisdiction or a bar to a suit created by any law for the time arises for consideration and if court can once and for all dispose of the case with reference to the said issues only, in such a context, the Court is empowered to defer the settlement of other issues, only after that issue has been determined and may deal with the suit in accordance with the decision on the preliminary issues. 8. At this stage, it is significant to mention that in (AIR 2001 Himachal Pradesh at page 18 Om Prakash and others Vs. State of Himachal Pradesh and others), it is observed as follows: "(A)Civil P.C. (5 of 1908), O.20 R.5 Judgment What is Judge framing all issues -Enumerating evidence and law. Thereafter giving conclusion, thereby accepting points of one party and rejecting that of other - Judgment not containing reasons or grounds for coming to conclusion on each issue - It is no judgment. AIR 1985 S.C. 736 , Followed". 9. In AIR 1973 Patna 389 at 390 Ram Padarath Singh Vs. Baidyanath Prasad and others, it is held that "Notwithstanding the provisions of O.14 R.2 in appealable cases, the trial Court should pronounce its opinion on all issues so as to avoid remand if the appellate Court differs from the trial Court on preliminary issue. AIR 1954 SC 202 Relied on". 10. On a perusal of the Judgment passed by the learned single Judge in C.S.No.878 of 1987 dated 28.03.2001, we are of the view that there is no finding on each issue notwithstanding the fact that totally five issues were framed in the suit. The object of deciding all the issues in a suit is to prevent rem and multiplicity of suit, in the considered opinion of this Court. 11. The object of deciding all the issues in a suit is to prevent rem and multiplicity of suit, in the considered opinion of this Court. 11. Inasmuch as there is no decision on each issue in the Judgment in C.S.No.878 of 1987 (though totally five issues were framed) passed by the learned single Judge, we are perforced to interfere with the said Judgment and Decree passed by the learned single Judge in C.S.No.878 of 1987 dated 28.03.2001 without deciding the case on merits since the same is contrary to the Civil Procedure Code and in that view, allow the Appeal and remit the matter back to the learned single Judge for disposing the same by pronouncing opinion on all issues in accordance with law. Resultantly, the Judgment and Decree passed by the learned single Judge is hereby set aside. Bearing in mind considering the facts and circumstances of the case, the parties are directed to bear their own costs.