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2017 DIGILAW 984 (HP)

Rakesh Kumar v. Prem Singh Thakur

2017-08-30

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Bilaspur, District Bilaspur, (H.P), in Civil Appeal No.50/13 of 2014, dated 14.12.2016, setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bilaspur, District Bilaspur, in Civil Suit No.133/1 of 2009, dated 14.10.2014. 2. Material facts necessary for adjudication of the present appeal are that respondent/plaintiff (hereinafter referred to as the ‘plaintiff’) maintained a suit for mandatory injunction against the appellant/defendants (hereinafter referred to as the ‘defendant’) directing defendant No.1 to regularize/restart membership No.569, in the name of plaintiff, in case, the membership is transferred in the name of defendant No.2, as defendant No.2 is not eligible to become the member of defendant No.1. It is alleged that plaintiff was a truck operator and a member of the Bilaspur District Truck Operators Cooperative Transport Society Ltd. Barmana, District Bilaspur (H.P) (hereinafter referred to as ‘BDTS’) having his membership No.569 (old) and 533 (new) and was doing his transport work/business upto 2005. Under compelling circumstances, he had to sell his truck, as he had financial constraints. The plaintiff has sold his truck bearing No.HP-07- 5586 in favour of defendant No.2 on 15.3.2005 through affidavit, in which, membership was not sold. Defendant No.2 after obtaining and attestation of affidavit of plaintiff interpolated (alongwith Gatta number of B.D.T.S, Barmana) and has committed forgery with the plaintiff. The plaintiff had not transferred the membership number alongwith the truck. The affidavit given by defendant No.2 in favour of the plaintiff does not mention transfer of the registration of truck alongwith Gatta. Defendant No.2 was not eligible to become member of defendant No.1, as he has settled in District Bilaspur, only in the year 1980 and is not a bonafide resident of District Bilaspur. The plaintiff orally requested defendant No.1 for allowing him to attach his truck on his membership No.569 on the ground that the plaintiff is in a position to purchase and ply the truck and defendant No.1 assured the plaintiff in the month of December, 2007 that letter will be issued to plaintiff in the first week of January, 2008, but no letter was received. Notice dated 20.4.2009, was received by the plaintiff from defendant No.1, in which, it is mentioned that the truck is not in the list of 2032 and the plaintiff is not eligible to be member of B.D.T.S. The plaintiff had replied the notice that defendant No.2, is not legally entitled to ply the truck against the plaintiff membership No.569 and is misusing the authority, which is detrimental to the rights of the plaintiff. 3. Defendant No.1 contested the suit by raising preliminary objections qua maintainability, jurisdiction, non-joinder and mis-joinder of necessary parties, valuation and locus standi. On merits, it is pleaded that as per affidavit of the plaintiff filed by defendant No.2, for attachment of the vehicle clearly depicts that the plaintiff has sold his vehicle alongwith Gatta number of the vehicle. As per affidavit, dated 15.3.2005, clearly depicts that the plaintiff has sold his truck bearing No.HP-07-5586 to defendant No.2 “alongwith Gatta number of B.D.T.C; Barmana” and as such, defendant No.2, plying the truck with defendant No.1 since 2005. The plaintiff never objected about the attachment of such vehicle upto 2008. Separate written statement was filed by defendant No.2, on the grounds of maintainability, limitation, valuation, jurisdiction and estoppel. It is pleaded that the plaintiff has sold vehicle bearing No.HP-07-5586 in favour of him on 15.3.2005 alongwith Gatta. Defendant No.2 is the member of society since 1998 and paid the membership prescription on 31.3.1998, vide receipt No.55917. After purchase of vehicle alongwith Gatta, defendant No.2, applied with defendant No.1, for attachment of the truck alongwith affidavit. 4. On the pleadings of parties, the learned trial Court framed following issues on 11.3.2010 : “1. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for ? OPP. 2. Whether the plaintiff has cause of action to file the present suit ? OPP. 3. Whether the suit of the plaintiff is not maintainable ? OPD. 4. Whether the plaintiff has no locus standi to file the present suit ? OPD. 5. Whether the plaintiff is estopped by his own act and conduct for filing the present suit ? OPD. 6. Relief.” 5. The learned trial Court after deciding Issue Nos.1 to 4 in negative, Issue No.5 in affirmative, dismissed the suit. 6. OPD. 4. Whether the plaintiff has no locus standi to file the present suit ? OPD. 5. Whether the plaintiff is estopped by his own act and conduct for filing the present suit ? OPD. 6. Relief.” 5. The learned trial Court after deciding Issue Nos.1 to 4 in negative, Issue No.5 in affirmative, dismissed the suit. 6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Bilaspur, District Bilaspur, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below with a direction to decide the suit afresh by giving findings on all issues as well as on additional issues framed by the learned lower Appellate Court. 7. Learned counsel appearing on behalf of the appellant has argued that the judgment passed by the learned lower Appellate Court in remanding the case in totality to the learned Court below is against the law. He has further argued that the learned lower Appellate Court could have send the case to the learned Court below for recording evidence on the additional issues and dispose of the appeal. On the other hand, learned counsel appearing on behalf of respondent No.1, has argued that there is no irregularity and illegality in the impugned judgment passed by the learned lower Appellate Court and prays that the present appeal deserves to be dismissed. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 9. The only question, which arises for determination in the present appeal is that whether the learned lower Appellate Court was rightly remanded the case in totality after setting aside the judgment and decree passed by the learned Court below. The learned lower Appellate Court came to the conclusion that the learned Court below has not framed the issue which arose from the pleadings of parties and after concluding the same, framed two additional issues : “1A. Whether the truck bearing No.HP-07-5586 was sold by plaintiff to defendant No.2 without Gatta (priority number). If so its effect ? OPP. 1B. Whether the Civil Court has jurisdiction to try and decide the present suit ? Whether the truck bearing No.HP-07-5586 was sold by plaintiff to defendant No.2 without Gatta (priority number). If so its effect ? OPP. 1B. Whether the Civil Court has jurisdiction to try and decide the present suit ? OPP.” The learned lower Appellate Court found that the parties are required to lead their evidence on these issues and they were also required to be afforded an opportunity to lead their evidence, so the judgment passed by the learned lower Court set aside. 10. Hon’ble Apex Court in AIR 1984 Supreme Court, 133, titled Soundararaj vs. Devasahayam and others, it has been held in para-8 of the judgment, as under : “8. After hearing the learned counsel of the parties, we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two Courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two Courts and remanding the suit to the Court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the trial Court with liberty to both the parties for adducing evidence. Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judge’s order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respect keeping intact the judgments and decrees of the first two Courts. The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two Courts already rendered and the objections, if any, which may be filed by the parties to the findings. It is desirable that afresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings. The matter will go back to the High Court for fresh disposal in accordance with law as indicated above. The costs shall abide the result.” 11. It is desirable that afresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings. The matter will go back to the High Court for fresh disposal in accordance with law as indicated above. The costs shall abide the result.” 11. Similarly, Hon’ble Apex Court in 2008 (12) Supreme Court Cases 372, titled Bachahan Devi and another vs. Nagar Nigam, Gorakhpur and another, where question of law was came up for consideration in the Hon’ble Apex Court, relevant para-10 & 11 of the judgment is reproduced as under : “10. Under Order 41 Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point 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 additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyze the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows: "As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings relating to said legal and factual issues after itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable in the present matter." 11. Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable in the present matter." 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. In order to bring in application of Order XLI 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 findings therein and the reasons therefor. 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 the reasons therefor.” 12. 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 the reasons therefor.” 12. From the above, it is clear that the learned lower Appellate Court was required to send back the case to the learned Court below only to record evidence on the additional issues and either would have called for the findings on the additional issues from the learned Court below and re-appreciated them or the learned lower Appellate Court could have recorded the evidence and recorded its findings on the additional issues. 13. Accordingly, the present appeal is allowed and the case is remanded back to the learned lower Appellate Court to adopt any of the method. Both the parties, through their learned counsel, are directed to put in appearance before the learned lower Appellate Court on 18th September, 2017. 14. In view of the aforesaid discussion, the present appeal is disposed of in the aforesaid terms with no order as to costs. Pending applications, if any, shall also stands disposed of.