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2010 DIGILAW 2379 (PNJ)

Harbans Singh v. Dalip Singh

2010-08-19

MEHINDER SINGH SULLAR

body2010
Judgment Mehinder Singh Sullar, J. 1. The crux of the facts, relevant for a limited purpose of deciding the core controversy involved in the instant appeal and emanating from the record, is that originally, Dalip Singh and others respondent-plaintiffs (hereinafter to be referred as the plaintiffs) filed the suit against Harbans Singh (since deceased) son of Jagat Singh, being represented by his legal representatives appellant defendants (hereinafter to be referred as the defendants) for a decree of declaration/possession in respect of the land in dispute and for recovery of mesne profits on the grounds depicted in the plaint. 2. The defendants contested the suit, filed the written statement, stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- "1. Whether the plaintiffs are the sole heirs and legal representatives of Bir Kaur deceased?OPP 2. Whether the Bir Kaur acquired the suit property by selling the land she inherited from her in-laws?OPP 3. Whether the suit is within time?OPP 4. Whether the suit is properly valued for the purpose of court fees and jurisdiction?OPD 5. Whether the plaintiff is entitled for decree for accounts of mesne profits from j the suit land from 15.3.87 to the date of the delivery of the suit land?OPP 6. Whether the Bir Kaur executed a valid will on 4.5.86 in favour of the defendant?OPD 7. Whether the defendant is the son of the maternal uncle of Bir Kaur?OPD 8. Whether the plaintiffs have no locus standi to file the present suit?OPD 9. Whether the suit is not maintainable in the present form?OP 10.Whether the plaintiffs are estopped and barred by their act and conduct from filing the suit?OPD 11.Relief." 4. The parties to the suit produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 5. Taking into consideration the entire evidence on record, the trial Court decided issue Nos.1,2 and 5 against the plaintiffs; issue No.3 was decided in favour of the plaintiffs and issue No.4 against the defendant. Sequelly, issue Nos.6 and 7 were answered in favour of the defendant. 5. Taking into consideration the entire evidence on record, the trial Court decided issue Nos.1,2 and 5 against the plaintiffs; issue No.3 was decided in favour of the plaintiffs and issue No.4 against the defendant. Sequelly, issue Nos.6 and 7 were answered in favour of the defendant. As the learned counsel did not press, therefore, issue Nos.8 to 10 were decided against the defendant. In view of findings on various issues, ultimately, the trial Court dismissed the suit of the plaintiffs, by virtue of judgment and decree dated 11.9.2001. 6. The plaintiffs did not feel satisfied with the judgment and decree of the trial Court and.filed the appeal. The Ist Appellate Court accepted the appeal, set aside the judgment and decree and remanded the case to the trial Court for its fresh decision, vide impugned judgment dated 16.7.2002. 7. The appellant-defendant (since deceased) being represented by his LRs did not feel satisfied with the impugned judgment of the first appellate Court and filed the present appeal. That is how, I am seized of the matter. 8. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to me, as the judgment of Ist appellate Court cannot legally be sustained, therefore, the present appeal deserves to be accepted, for the reasons mentioned here-in-below. 9. As is evident from the record that the plaintiffs filed the suit against the defendants seeking a decree for declaration/possession and recovery of mesne profits. The defendants have stoutly denied the claim of the plaintiffs. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs by discussing all the issues. In the wake of acceptance of the appeal filed by the plaintiffs, strange enough, the Ist Appellate Court remanded back the matter to the trial Court by observing that under issue No.l on pages 19 and 20, the trial court has given its own discussion on the basis of the contentions raised by the learned counsel for both the parties in just six lines and under issue No.6, the trial court after discussing the pleadings and evidence led by the parties on this issue, has given its own findings on page 29 in just nine lines. In other words, it can be said that the trial court has not discussed at all as to how and on what basis it decided the issue in favour of the defendants. Therefore, the Ist appellate Court remanded the case with the following directions:- "In view of the above discussion, the judgment and decree passed by the trial court are set-aside and the case is remanded to the trial court for deciding the civil suit after discussing the evidence of both the parties and after discussing as to how it reached the conclusion arrived at by it under issues No.l and 6 and other issues. The trial court is directed to dispose off the case as expeditiously as possible. An application for amendment of the plaint has also been filed in this court. The application and the reply filed by the opposite party alongwith the documents, if any, placed on the appeal file shall be sent to the trial court and the trial court is directed to dispose of that application on merits." 10. Above being the position on record, now the sole question, that arises for determination in this appeal, is as to whether the first appellate Court was legally justified in remitting the case to the trial court or not? 11. Having regard to the rival contentions of the learned counsel for the parties, retable to the material on record, to my mind, the Ist appellate Court has slipped into deep legal error in this relevant connection. 12. In this manner, the first appellate Court has adopted a novel method of disposal of the appeal. If it was of the opinion that the trial court lacks in complete discussion on issue Nos.1 and 6, then it was the statutory duty of the first appellate Court to decide the appeal itself on merits, in spite of setting aside the judgment and decree and remanded the matter to the trial Court on hyper-technical grounds. 13. Order 41 Rule 24 CPC postulates that "where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling 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 that on which the Appellate Court proceeds." 14. It is not a matter of dispute that the trial Court has decided the case on merits by taking all the issues. In that eventuality, the matter can only be remanded under Order 41 Rule 25 CPC, which posits that where the Court from whose decree the appeal is preferred has omitted to frame or try any 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 therefor. 15. Meaning thereby, the first appellate Court can remand the case to the trial Court only in that event, if the case squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. The mere fact that the trial Court discussed issue No.1 in six lines and issue No.6 in nine lines is not at all a valid ground to remand the case as has been done by the first appellate Court. If there is sufficient evidence on record, then it was for the Ist appellate Court to decide the case on merits as envisaged under Rule 24 CPC. Thus, the contention of the learned counsel for the appellant-defendants has considerable force and the contrary arguments of the learned counsel for the respondent-plaintiffs stricto sensu deserve to be and are hereby repelled under the present set of circumstances. The law laid down by this Court in SAO No.3 of 2009 titled as Jagtar Singh and another v. Bachan Singh and others 1 (2010-4)160 P.L.R. 447 decided on 02.07.2010 and in SAO No.53 of 2005 titled as The Haryana Wakf Board v. Smt.Chander Kala and others decided on 10.8.2010 mutatis mutandis is applicable to the facts of the present case and is the complete answer to the problem in hand. Therefore, the impugned judgment of Ist appellate Court deserves to be and is hereby set aside in the obtaining circumstances of the case. 16. Therefore, the impugned judgment of Ist appellate Court deserves to be and is hereby set aside in the obtaining circumstances of the case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing, the instant appeal is hereby accepted. The impugned judgment dated 16.7.2002 is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law. 18. Needless to say that the Ist appellate Court will be at liberty to decide the application for amendment of the plaint as well. 19. The parties through their counsel are directed to appear before the first appellate Court on 29.9.2010.