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2014 DIGILAW 1034 (HP)

Kishan Singh v. Puran Chand

2014-08-04

TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, Judge. The appellant is the plaintiff (wrongly written as defendant in the memo of par ties) and is aggrieved by the judgment and decree passed by the learned District Judge, Kullu, on 06.11.2013, in Civil Appeal No.106/2012, whereby he set aside the judgment and decree passed by the learned Civil Judge(Senior Division), Kullu, on 05.10.2012, in Civil Suit No.6 of 2007 (168 of 2009) and remanded the suit back to the learned trial Court with direction to proceed in the suit from order dated 11.01.2012 onwards. 2. Certain facts as are necessary for the adjudication of this case may be noticed. The plaintiff had filed suit to the effect that one Ishari Dass was owner in possession of the suit land i.e. 1/3rd share equal to 8-01-0 bighas described in the plaint. The plaintiff had four sons namely Kishan Singh, plaintiff, Puran Chand, Hari Chand and Paine Ram, defendants No.1 to 3, and three daughters namely Ram Dei, HIra Devi and Radha Devi, defendants No. 4 to 6. Defendant No.3 Paine Ram is issueless. It was also averred that Ishari Dass bequeathed his entire estate including the suit land in favour of plaintiff, defendants No.1 and 2 vide registered Will dated 29.06.1979 as plaintiff rendered services to Ishari Dass during his life time. The plaintiff along with defendants No.1 and 2 used to cultivate and manage the suit land on behalf of Ishari Dass. Plaintiff and Ishari Dass were residing jointly and they were having joint kitchen. Ishari Dass died on 06.11.2002 and after his death plaintiff along with defendants No. 1 and 2 inherited the suit land on the basis of aforesaid Will. However, at the time of attestation of mutation of inheritance, defendants No.1 and 2 set up a forged and fictitious Will dated 28.06.1989 of Ishari Dass and on the basis of said fictitious Will, A.C.2nd Grade, Kullu, attested and sanctioned mutati on of inheritance in favour of defendants No.1 and 2. It was further averred that plaintiff challenged that in fact Ishari Dass did not execute any Will dated 28.06.1989. It was further averred that plaintiff challenged that in fact Ishari Dass did not execute any Will dated 28.06.1989. Hence, the suit was filed for declaration that plaintiff and defendants No.1 and 2 be declared joint owners in possession of the suit land to the extent of 1/3rd share each and defendants be restrained by way of permanent prohibitory injunction claiming any right over the suit land on the basis of fictitious and forged Will dated 28 06 1989 3. The defendants No. 1 and 2 contested the suit by filing joint written statement wherein preliminary objections with regard to maintainability, cause of action, suppression of material facts, limitation and valuation of suit for the purpose of court fee and jurisdiction, were taken. On merits, it was averred that Ishari Dass, father of the parties, had executed his last and valid Will dated 28.06.1989 in favour of defendants No.1 and 2 and on the basis of same a correct mutation was sancti oned and attested qua the inheritance of Ishari Dass. It was further averred that in fact Ishari Dass never executed any Will dated 29.06.1979 in favour of plaintiff as alleged by him. Ishari Dass was never looked after by the plaintiff and plaintiff never rendered any kind of services to Ishari Dass. It was further averred that the Will dated 28.06.1989 executed by Ishari Dass in favour of defendants No.1 and 2 was registered one and at the time of execution of said Will by Ishari Dass, he was possessing sound disposing mind. The defendants No.1 and 2 denied that plaintiff was having 1/3rd share in the suit land, in fact, the suit land was jointly owned and possessed by both the defendants No.1 and 2 and prayed for dismissal of the suit land. 4. The remaining defendants did not contest the suit and as such they were proceeded ex-parte by the learned trial Court. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court on 13.07.2010:- 1. Whether Shri Ishari Dass had executed a legal and valid Will dated 29.6.1979 in favour of plaintiff, defendants No.1 and 2, if so, its effect? OPP 2. If issue No.1 is proved, whether the plaintiff along with defendants No.1 and 2 are joint owner in possession of the suit land? OPP. 3. Whether Shri Ishari Dass had executed a legal and valid Will dated 29.6.1979 in favour of plaintiff, defendants No.1 and 2, if so, its effect? OPP 2. If issue No.1 is proved, whether the plaintiff along with defendants No.1 and 2 are joint owner in possession of the suit land? OPP. 3. Whether Shri Ishari Dass had executed a legal and valid Will dated 28.6.1989 in favour of defendants No.1 and 2? OPD-1 and 2. 4. If issue No.3 is proved in affirmative, whether defendants No.1 and 2 are the owner in possession of suit land? OPD1 and 2. 5. Relief. 6. The learned trial Court decreed the suit of the plaintiff. Aggrieved by the said findings, an appeal was preferred by defendant No.1 before the learned lower appellate Court, who accepted the appeal in the aforesaid terms. 7. On 04.03.2014, the appeal was admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree passed by the learned first appellate Court are based upon misreading, misinterpreting and misconstruing the pleadings and evidence on record and resulted into perversity? 2. Whether the Ld. First appellate Court has legally remanded the case to the Ld. trial Court with the direction to grant an opportunity to produce the original Will dated 28.06.1989 and to grant an opportunity to produce the evidence to fill the lacuna after affording proper opportunity to them to produce the evidence? Questions No.1 and 2. Since both the questions are interconnected and interlinked, I proceed to decide the same through common reasoning. 8. Shri Padam Chand Sharma, learned counsel for the appellant has vehemently argued that the course adopted by the learned lower appellate Court, in fact, was not available to him in law. In passing the impugned order the defendant No 2 who throughout has been proceeded ex parte, has in fact been allowed to join the proceedings and participate therein. 9. I am afraid that I cannot agree with such submission. Admittedly, the defendant No.1 had moved an application under Order 11 Rule 14 CPC for directing the defendant No.2 to produce the original Will dated 28.06.1989 and vide order dated 11.01.2012 the learned trial Court had passed the following order:- “11.1.2012. Present :-Sh. B.C.Thakur, Adv. for plaintiff. Sh.K.R.Thakur, Adv. for defendant No.1. Remaining defendant No.2 to 6 are already ex parte. No DW’s present. Present :-Sh. B.C.Thakur, Adv. for plaintiff. Sh.K.R.Thakur, Adv. for defendant No.1. Remaining defendant No.2 to 6 are already ex parte. No DW’s present. Counsel for defendant filed an application u/o 11 R. 14 C.P.C. for production of original Will dated 29.06.1989. Counsel for plaintiff has no objection, if the application is allowed. Issue notice to defendant No.2 Hari Singh to produce the original Will on 21.1.2012 & for DW’s. Steps be taken within 2 days. Sd/- Civil Judge (Sr. Division), Kullu.” 10. Despite this order, no steps were taken by the learned trial Court to ensure its compliance and in fact straightaway called upon the defendant No.1 to produce its evidence thereby depriving the defendant No.1 his right to prove the Will dated 28.06.1989 either by way of primary or secondary evidence. It is precisely this fact which weighed in the mind of the learned lower appellate Court and the matter was remanded back to the learned trial Court to proceed in accordance with the order dated 11.01.2012. 11. This decision of the learned lower appellate Court does not allowed to participate in the proceedings or the ex parte proceedings against him have been set aside. 12. In fact, before filing of the appeal, the learned trial Court in compliance to the directions of the learned lower appellate Court took up the matter on 17.01.2014 by which time the original defendant No.2 had since expired and his legal representatives appeared before the learned trial Court and deposed that the original Will dated 28.06.1989 is not with them and accordingly the application under Order 11 Rule 14 CPC was disposed of as is clear from the order passed by the learned trial Court on 17.01.2014. Not only this, thereafter the case was taken up on 18.02.2014 on which date the defendant No.1 filed an application under Sections 65 and 66 of the Indian Evidence Act to lead secondary evidence which application is now pending adjudication before the learned trial Court and because of the stay granted by this Court on 04.03.2014, the matter could not proceed further. 13. Shri Padam Chand Sharma, learned counsel for the appellant, would then contend that since the defendant No.2 was exparte, therefore, he could not have been directed to produce the original Will as he is debarred from even participating in the proceedings. 14. I am afraid that such contention cannot be accepted. 13. Shri Padam Chand Sharma, learned counsel for the appellant, would then contend that since the defendant No.2 was exparte, therefore, he could not have been directed to produce the original Will as he is debarred from even participating in the proceedings. 14. I am afraid that such contention cannot be accepted. This submission is totally incongruous for more than one reason. Once, notice under Or der 11 Rule 14 CPC was directed against the defendant No.2, then it is the defendant No.2, who alone could be ordered to be served and called upon to file reply to this notice. The mere fact that the defendant No.2 had been proceeded ex parte would not mean that he was no longer a party to the suit The production of documents in terms of the Rule 14 Order 11 can only be called upon by “any party”. Thus, there was no illegality committed by the learned lower appellate Court on this account. 15. Shri Padam Chand Sharma, Advocate, would then contend that once the trial Court had decided the suit on merits and not on preliminary points, the learned appellate Court could not have remanded the whole case for retrial. He places reliance upon Ratilal Sakarlal and another versus Gandabhai Muljibhai AIR 1962 Gujarat 61, K.Krishna Reddy and others versus Special Deputy Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh (1988) 4 SCC 163 , United Bank of India, Calcutta versus Abhijit Tea Co. Pvt. Ltd. and others (2000) 7 SCC 357 . 16. There is no quarrel with the proposition as canvassed by Shri Sharma, but the question here is whether the learned lower appellate court has remanded the suit for retrial? The answer is definitely no. The directions passed by the learned lower appellate Court are categoric and clear to the effect that the learned trial Court would proceed with the suit from the order dated 11.01.2012 and, therefore, none of these judgments as relied upon by learned counsel for the appellant is applicable to the fact situation obtaining in the present case. 17. The directions passed by the learned lower appellate Court are categoric and clear to the effect that the learned trial Court would proceed with the suit from the order dated 11.01.2012 and, therefore, none of these judgments as relied upon by learned counsel for the appellant is applicable to the fact situation obtaining in the present case. 17. It cannot be disputed that once the appellate Court arrives at the findings that the judgment of the trial Court is erroneous and liable to be reversed and set aside, the appellate Court can remand the case, but then, it ought to be remembered that an order of remand should not be taken to be a matter of course and the power to remand has to be sparingly exercised and there should always be an endeavour to dispose of the case by the appellate Court itself. But, then fact situation obtaining in this case as noticed above is such that remand of the case to the trial Court in the peculiar facts and circumstances of the case is just and proper. Both the questions of law are answered accordingly. 18. The learned counsel for the respondents have questioned the very maintainability of this appeal under Section 100 of the Code of Civil Procedure and contend that if at all the appeal was maintainable, the same would only lie under Order 43 Rule 1 Clause (u). This question need not be answered since I have already held the appeal to be without merit. 19. Consequently, the appeal fails and is dismissed along with pending application(s), if any, leaving the parties to bear their own costs.