Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 495 (UTT)

Anil Kumar Verma v. Sheela Verma

2019-09-16

MANOJ K.TIWARI

body2019
JUDGMENT : Manoj K. Tiwari, J. By means of this writ petition, petitioner has challenged the order dated 29.05.2019 passed by 1st Additional District Judge, Haridwar in Civil Appeal No. 17 of 2014, whereby petitioner's application under Order 41 Rule 25 of C.P.C. to frame an additional issue has been rejected. 2. Petitioner is defendant in Original Suit No. 244 of 2009, filed by one Mr. Rajeshwar Prasad Verma for perpetual and mandatory injunction. Mr. Rajeshwar Prasad Verma passed away during pendency of the suit; therefore, his legal representatives were substituted in his place. 3. Subject matter of the suit is one passage, which is marked with letter 'a', 'd', 'e' & 'f' in the plaint map. According to the plaintiff (respondent herein), the land under the said passage belongs to him, as he purchased the passage along with adjoining plot by means of registered sale deed dated 07.05.1969 from erstwhile owner Smt. Kanti Devi. In his written statement, petitioner contended that it is a public passage and it does not belong to the plaintiff. Based on the pleadings of the parties, learned trial court framed as many as seven issues, and after considering the material on record, the said suit was decreed vide judgment and order dated 18.02.2014 and the defendant (petitioner herein) was restrained from opening window, ventilators etc. in the passage and further to close three existing ventilators, in the passage within one month. 4. Feeling aggrieved by the judgment and decree passed by learned trial court, petitioner filed an appeal under Section 96 of C.P.C., which is registered as Civil Appeal No. 17 of 2014 in the court of 1st Additional District Judge, Haridwar. After nearly five years, petitioner moved an application before learned appellate court on 16.04.2019 under order 41 Rule 25 of C.P.C. to strike out or amend issue No. 1 and replace it with a new issue. (English translation whereof is given below):- "Whether disputed property marked as 'a', 'd', 'e' & 'f' is owned by the plaintiff and was purchased by him by registered sale deed dated 07.05.1969. If yes, then its effect." 5. Learned appellate court rejected the said application vide order dated 29.05.2019 by holding that the new issue, now sought to be raised, is covered by issue No. 4 framed by the trial court. 6. Heard learned counsel for the parties and perused the record. 7. If yes, then its effect." 5. Learned appellate court rejected the said application vide order dated 29.05.2019 by holding that the new issue, now sought to be raised, is covered by issue No. 4 framed by the trial court. 6. Heard learned counsel for the parties and perused the record. 7. Order 41 Rule 25 of C.P.C. is reproduced below for ready reference:- "25.Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from - 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 its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time." 8. Order 41 Rule 25 of C.P.C. enables appellate court to frame issues and refer them for trial. However, this power can be invoked only when the trial court has omitted to (a) frame the issue; (b) try any issue; and (c) to determine any question of fact, which appears to the appellate court essential for just decision of the suit upon the merits. It is, thus, apparent that the aforesaid provision confers discretion upon the appellate court to frame issue and refer it for trial to the court below in certain circumstances. However, the power available under Order 41 Rule 25 of C.P.C. is to be used with circumspection in cases where the appellate court finds that non-framing of an issue has resulted in miscarriage of justice. 9. However, the power available under Order 41 Rule 25 of C.P.C. is to be used with circumspection in cases where the appellate court finds that non-framing of an issue has resulted in miscarriage of justice. 9. Privy Council in the case of Mussumat Mitna v. Syed Fuzl Rab, (1870) 13 MooIndApp 573 at p. 583 said: "In this case the omission to raise the issues was brought before the notice of the appellate Court; the appellate Court expressed its regret, and their Lordships are glad to observe that it did express its regret that the Principal Sudder Ameen had omitted to settle the issues. The Court, however, nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a re-trial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section of the Civil Procedure Code. At all events, it appears to their Lordships that there is nothing in the Code which made it imperative upon the appellate Court, or now makes it imperative upon their Lordships, to yield to that objection and, therefore, fully concurring in the observations made by the appellate Court that it was the duty of the Judge to settle the issue, and that it was much to be regretted that he omitted to settle those issues, they still think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mis-trial of the cause which vitiates all the proceedings and renders a new trial necessary." 10. Similar observations are to be found in para 6 of the decision in Nedunuri Kameswaramma v. Sampati Subba Rao, (1963) AIR SC 884, wherein it has been observed : - "No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." 11. I have gone through the impugned order. Learned appellate court has rightly rejected petitioner's application, as Order 41 Rule 25 of C.P.C. does not permit striking out or amendment of an issue framed by trial court and it only enables the appellate court to frame an issue which appears to it essential for the adjudication of the suit upon merit. Thus, the prayer made by the petitioner was beyond the ambit and scope of Order 41 Rule 25 of C.P.C. 12. Even otherwise also, learned appellate court has rightly held that the new issue sought to be formulated by the petitioner is covered by issue No. 4. Thus, the appellate court was of the view that absence of the issue, as suggested by the petitioner, was not fatal to the case or in other words, the evidence, which was led in the case, is sufficient to reach the right conclusion. Since Order 41 Rule 25 of C.P.C. confers discretion upon the appellate court and the appellate court has given valid reason for not exercising such discretion in favour of the petitioner, therefore, this Court is not inclined to interfere with the order passed by the appellate court, that too in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 13. Accordingly, writ petition fails and is hereby dismissed. No order as to costs.