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2019 DIGILAW 850 (HP)

Ram Parkash v. Surinder Kumar

2019-07-03

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohal Goel, J. 1. By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Additional District Judge, Fast Track Court, Una, District Una, H.P. in Civil Appeal No. 91/2K/RBT243/04/2000, dated 5.1.2009, whereby the appeal and cross appeal filed by both the plaintiffs and defendants were disposed of in the following terms:- "The bare perusal of the judgment and decree dated 31.5.2000 passed by the trial Court goes to show that the recent findings of the trial Court dated 29.11.2008 are in complete contrast to the earlier findings of the trial Court dated 31.5.2000. In other words, the findings of the trial Court dated 29.11.2008 are contradictory to its earlier findings vide which the sale deed in question was declared as null and void and the plaintiff was held to be in possession and entitled to the relief of injunction. Certainly, these findings have effect on the merits of the case. Due to these contradictory findings, I doubt that the findings of the trial Court can sustain. Even the learned counsel for both the parties during the course of arguments admitted at the bar that in such like situation the best course to this Court is to ask the trial Court to record its findings afresh on all the issues and to re-write the judgment." 2. Learned Senior Counsel for the appellant has argued that the judgment, vide which the matter stands remanded by the learned Appellate Court, is per-se not sustainable in the eyes of law as the same is not as per provisions of Order 41, Rule 23 (a) of the Act and once appeal stood filed before the said Appellate Court, it was incumbent upon the Appellate Court to have an adjudication upon the case on merit and not remanded the case back to the learned trial Court. 3. Brief facts necessary for the adjudication of the present appeal are that the appellant herein filed a suit for specific performance and injunction against the respondents/ defendants. The said suit was decreed by the Court of learned Sub-Judge, 1st Class, Amb, District Una, H.P. vide judgment and decree dated 31.5.2000. 4. Feeling aggrieved, the defendants preferred an appeal. 3. Brief facts necessary for the adjudication of the present appeal are that the appellant herein filed a suit for specific performance and injunction against the respondents/ defendants. The said suit was decreed by the Court of learned Sub-Judge, 1st Class, Amb, District Una, H.P. vide judgment and decree dated 31.5.2000. 4. Feeling aggrieved, the defendants preferred an appeal. In this appeal, i.e. Civil Appeal No. 91/2K/RBT243/04/2000, vide judgment dated 1.5.2008, learned Appellate Court after framing three additional issues, remanded the case back to the learned Trial Court with the direction that learned trial Court was to return its findings on additional issues as also on issue No. 3A framed by the learned Appellate Court within a period of six months. Pursuant to the said judgment passed by the Appellate Court, learned Trial Court vide order dated 29.11.2008, returned its findings, to the additional issues. 5. Record demonstrates that the plaintiff also preferred an appeal against the findings so returned by the learned trial Court post remand vide order dated 29.11.2008. Both the appeals i.e. appeal earlier preferred by the defendants against the original judgment and decree passed by the learned trial Court as also the appeal filed by the plaintiff to the subsequent order passed by the learned trial Court stand disposed of vide impugned judgment, relevant portion of which already stands quoted herein. 6. I have heard learned counsel for the parties and have also gone through the judgments passed by the learned Courts below including the impugned judgment as also the relevant record of the case. 7. A perusal of para 17 of the judgment, which stands assailed by way of this appeal, demonstrates that what weighed with learned Appellate Court while remanding the case to the trial Court to decide the same afresh was the factor that there was contradiction in the findings so returned by the learned trial Court in the subsequent order passed by it as compared to the earlier judgment and decree passed by it. Record further demonstrates that during the course of arguments before learned Appellate Court, learned counsel representing the parties, which includes the present appellant also stated at the bar that in such like situation, i.e. in view of the contradiction being there in the finding returned by the learned trial Court in its earlier judgment and decree as compared to the subsequent order passed by it on remand, the best course was to ask the learned trial Court to give his findings afresh on all the issues and to re-write the judgment. 8. In this view of the matter when the order of remand passed by the learned Appellate Court is based upon a concession so made before it by learned counsel for parties including the counsel of present appellant, it does not lie in the mouth of the appellant to assail the said judgment of remand on the ground that the Appellate Court shall have decided the case on merit rather than remanding back to the learned trial Court. Reliance placed by the learned Senior Counsel upon the provisions of order 41, Rule 23 (a) of the Code of Civil Procedure as also the judgment of the Hon'ble Supreme Court in titled as Municipal Corporation Hyderabad vs. Surender Singh, (2008) 8 SCC 485 is also of no assistance in the facts of this case as herein there is a concession made by the counsel for the present appellant before the learned Court below for the remand of the case. 9. In view of the findings returned hereinabove, this Court does not finds any merit in this appeal and the same is therefore, dismissed. However, it is observed that now as the matter stands remanded back to the learned trial Court for adjudication afresh, the same shall be decided by the learned trial Court completely uninfluenced by the findings returned by it in its earlier judgment and decree dated 31.5.2000 as also in its subsequent order dated 8.1.2009. In other words, the adjudication by the learned trial Court still be purely on the pleadings of the parties and the evidence led by them in support of the respective contentions before the trial Court. Application stands disposed of. The Registry is directed to forthwith return back the record of the case.