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2010 DIGILAW 269 (DEL)

A. R. NIM v. VISHWAMITRA

2010-02-11

MANMOHAN SINGH, VIKRAMAJIT SEN

body2010
JUDGMENT VIKRAMAJIT SEN, J. 1. This Appeal assails the Order of the learned Single Judge passed in Suit No.29/1972 on 24.4.1980 which decreed the Suit for Declaration and Injunction. The Original Plaint contained the following Prayers:- (1) It be declared that the defendants have no right, title or interest, by inheritance or otherwise in property No.16, Hanuman Road, New Delhi, and (2) A mandatory injunction be issued against the defendants to quit and remove themselves and all their belongings from the premises in dispute and never to enter the same. 2. After the completion of pleadings, initially the following Issues were framed on 9.5.1972:- 1. Whether the plaint as framed has been correctly valued for purposes of court fee? 2. If issue No.1 is decided against the plaintiff, then what is the value of the subject matter of the suit for purposes of court fee and jurisdiction? 3.Whether the suit is maintainable under S.34 of the Specific Relief Act? 4. Whether on the facts of the present case a suit for mandatory injunction or declaration is not maintainable? 5. Whether Shri Puran Chand made a Will dated 5.6.65? If so, is the same valid? 6.If issue No.5 is decided in favour of the plaintiff, to what property does the said will relate? 7. Whether defendants No.1 and 2 are entitled to any part of the property, subject matter of the suit by adverse possession? 8. If issue No.5 be held against the plaintiff, is defendant No.2 entitled to any share in the property left by Puran Chand. If so what is her share? 3. It appears that the Written Statement was permitted to be amended and consequently an additional Issue was struck namely:- Whether Vishva Mitra, plaintiff, is the son of Rai Sahib Puran Chand as alleged in the plaint? 4. A perusal of the Orders passed in the present Appeal discloses that on 29.5.1984 the Plaintiff/Respondent was permitted “to amend the suit so as to add fresh reliefs in the alternative and also the consequential amendments in para 10 of the plaint. The amendments will be effective from 20.9.1983, the date of the filing of the present application”. 5. 4. A perusal of the Orders passed in the present Appeal discloses that on 29.5.1984 the Plaintiff/Respondent was permitted “to amend the suit so as to add fresh reliefs in the alternative and also the consequential amendments in para 10 of the plaint. The amendments will be effective from 20.9.1983, the date of the filing of the present application”. 5. Thereafter in these proceedings the amended Plaint dated 5.12.1983 was taken on record, in which it has been prayed that:- (1) It be declared that the plaintiff is the sole owner of the property comprising No.16, 16-A and 16-B, Hanuman Road, New Delhi and the defendants have no right, title or interest of any kind by inheritance or otherwise in the above mentioned property, and (2) decree for possession of the property in dispute which is shown in red colour and is marked as A, B,C, D in the plan attached to the plaint and described in para No.2 of the plaint be passed in favour of the plaintiff and against the defendants. 6. Thereafter, the Appeal was adjourned from time to time. 7. In the course of the hearings before us, it has been contended by Mr. Harish Malhotra, learned Senior Counsel for the Appellant, that consequent upon an amendment to the plaint having been permitted, the lis should be remanded to the learned Single Judge on the Original Side of this Court for Framing of Issues and for leading additional evidence. Mr. Amit Sibal, learned counsel for the Respondent, does not argue to the contrary except for making the minor but significant clarification that the Remand Order should not have the effect of setting at naught (i) the Issues predicated on the existing pleadings; (ii) the evidence of the parties recorded pursuant thereto and (iii) the Judgment. 8. The controversy before us, therefore, is within a short compass. The contention is that the Appellate Court is competent to frame additional Issues, as also record the evidence thereon. His submission is that so far as the Plaintiff is concerned, no further evidence needs to be led. The fact remains that if yet another additional Issue is necessitated, it would be improper not to allow the Defendant an opportunity to cross-examine the Plaintiff’s witnesses with regard to this Issue and also to lead its own evidence. 9. His submission is that so far as the Plaintiff is concerned, no further evidence needs to be led. The fact remains that if yet another additional Issue is necessitated, it would be improper not to allow the Defendant an opportunity to cross-examine the Plaintiff’s witnesses with regard to this Issue and also to lead its own evidence. 9. Reliance has also been placed on behalf of the Respondent on Order XLI Rule 25 of the Code of Civil Procedure, 1908 which reposes in the Appellate Court the power to frame Issues and refer them for Trial to the Court whose decree has been appealed from. In our view, this Section does not apply, as is facially evident from a consideration of the opening words of the Section which postulates a situation where the Trial Court has omitted to frame or try an Issue, or to determine any question of fact. As has been narrated hereinabove, the need to amend the Plaint was felt and thereupon pressed by the Respondent/Plaintiff in the course of hearings of the Appeal. This very conundrum was sought to be unraveled in Bachahan Devi –vs- Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 , the facts of which were strikingly similar. In that case, one of the Plaintiffs was declared the owner of the land. In the course of the hearings of the Appeal, an application for carrying out amendments to the Written Statement was permitted by the Appellate Court and additional Issues were also framed. Their Lordships opined that an order of Remand should not be passed routinely since the Appellate Court retains the power to analyse the factual position as well as decide the additional Issues. Their Lordships emphasized on the presence of the word “may” and, therefore, there was no compulsion that the Appellate Court may itself frame Issues and record evidence. We can do no better than extract the salient paragraph from this Judgment:- 11. A bare reading of the provision makes it clear that the same comes into operation when 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 for the right decision of the suit upon the merits. A bare reading of the provision makes it clear that the same comes into operation when 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 for the right decision of the suit upon the merits. In order to bring an application of Order 41 Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate court to do so. This is clear from the use of the expression “may”. But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with the findings therein and the reasons thereof. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and reasons therefor. (Emphasis supplied) 10. It will be justified to reiterate that the need to frame additional Issues and lead evidence thereon has arisen because of the amendment to the plaint allowed in these appellate proceedings. (Emphasis supplied) 10. It will be justified to reiterate that the need to frame additional Issues and lead evidence thereon has arisen because of the amendment to the plaint allowed in these appellate proceedings. Having considered all the complexities of the case, we are of the opinion that the proper course to adopt is to remand the matter to the Original Side of this Court, with a direction that the appropriate Court should frame fresh/ additional Issues and record evidence thereon. We clarify that the evidence already recorded in the backdrop of the existing Issues will remain efficacious and relevant. The learned Single Judge shall thereafter reappraise the evidence, if found necessary by him, and pass a fresh judgment or affirm the impugned judgment with additions, as may be found relevant. It is again clarified that this Remand shall not have the effect of setting aside the impugned Judgment. 11. Since a part of the Trial is to resume at the instance of the Plaintiff, we direct the Registry to renumber the Suit on contemporary basis and allot a fresh number vice the existing one which will be deemed to have been disposed of. 12. Appeal is disposed of in these terms. Parties to bear their respective costs. 13. Trial Court record be sent back.