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2010 DIGILAW 1041 (HP)

Abhinash Devi v. BABU RAM

2010-08-13

V.K.AHUJA

body2010
JUDGMENT : V.K. AHUJA, J. 1. This judgment shall dispose of an appeal filed by the appellants against the judgment of the Court of learned Additional District Judge(II) Kangra at Dharamshala, dated 26.6.2008, vide which the appeal filed by the appellants/plaintiffs was accepted and the judgment and decree dated 25.8.2003 passed by the learned Sub Judge 1st Class (1), Nurpur, was set aside and the suit was remanded to learned trial Court for fresh trial after hearing learned counsel for the parties with the direction to give findings on all issues. 2. Briefly stated, the facts of the case are that suit for declaration was filed by the respondents/plaintiffs as against the appellants/defendants for declaration that the plaintiff and defendant No. 1 are the co-owners/co-sharers in joint possession of the land in suit and they are entitled to remain in such possession till the land is partitioned. The relief of permanent injunction was also sought. The defendants contested the suit. 9 issues were framed by the learned trial Court including Issue No. 6, which reads as under:- "Whether the suit is bad for non-joinder of necessary parties? OPD" 3. The learned trial Court gave its findings on Issue No.6 that the suit was bad for non-joinder of necessary parties and consequently dismissed the suit. No findings were given on the other issues. 4. On appeal, the learned Additional District Judge set aside the order passed by the learned trial Court and remanded the case to the learned trial Court to give findings on all the issues. 5. Being aggrieved, the appellants/defendants have come up in appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The learned counsel for the appellant has relied upon the decision of this Court in H.P. State Forest Corpn. Ltd. v. M/s. J.J. Ropeways & Company, 2004 (3) Cur. L.J. (H.P.) 271. In that case, it was a civil suit pending before this Court. The learned Judge had given its findings on Issue No. 2 in regard to limitation and no findings were given on other issues. The suit was consequently dismissed. The said decision is not attracted to the facts of the present case. 8. My attention has been drawn by the learned counsel for the respondent to a Full Bench decision of this Court in Prithvi Raj Jhingta & Anr. The suit was consequently dismissed. The said decision is not attracted to the facts of the present case. 8. My attention has been drawn by the learned counsel for the respondent to a Full Bench decision of this Court in Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr., AIR 2007 Himachal Pradesh 11. The Full Bench had fully considered the provisions of the Order 14, Rule 2 as amended by Amending Act of 1976. Observations made in Para-9 are relevant and are being reproduced below:- "9. Based upon the aforesaid reasons therefor, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub-rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit." 9. This decision clearly applies to the present facts and the learned trial Court had adopted a short cut method in disposing of the suit on a preliminary issue in regard to non-joinder of necessary parties. In case, there are any such findings, the suit should not have been dismissed and the plaintiff had to be given the opportunity to implead necessary parties, if any. In case, there are any such findings, the suit should not have been dismissed and the plaintiff had to be given the opportunity to implead necessary parties, if any. There is no infirmity in the findings recorded by the learned first Appellate Court holding that the findings on all the issues are required to be recorded by the learned trial Court. 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed. However, there is no order as to costs. Interim order passed, if any, shall stand vacated. 11. A copy of the judgment alongwith record be sent to the Court concerned. Parties to appear before the learned trial Court on 13th September, 2010.