Delhi District Court
Atma Ram Trust vs Sh. Sanatan Dharam Sabha on 23 April, 2022
IN THE COURT OF HEM RAJ
ADJ-08 : Central District : Room No. 152 : THC : Delhi.
RCA No. 243/2017
Unique ID No.: DLCT01-016186-2017
In the matter of:
Atma Ram Trust
Through its Sole Trustee Sh. C.M. Chadha,
Office No. 8, First Floor,
Atma Ram Mansion (SCINDIA House),
Connaught Circus,
New Delhi-110001 ..............Appellant
Versus
1. Sh. Sanatan Dharam Sabha, Rawal Pindi (Regd.)
Through its alleged President Sh. Amar Nath Jaggi,
Shiv Mandir, Subzi Mandi
Delhi-110007.
2. Sh. Atul Bahadur
(Falsely Representing as alleged Member),
R/o 5, Raj Narain Road, Civil Lines,
Delhi-110054.
3. Sh. Amar Nath Jaggi
(Falsely Representing as alleged Member/President),
R/o F-1/6, Model Town,
Delhi-110009.
RCA No. 243/2017 Page No. 1 of 21
4. Sh. Pawan Jaggi,
(Falsely Representing as alleged Member),
S/o Sh. Amar Nath Jaggi,
R/o F-1/6, Model Town,
Delhi-110009.
5. Sh. Ravi Taneja,
(Falsely Representing as alleged Member),
R/o W-80, Greater Kailash-I,
New Delhi-110048.
6. Sh. Inder Mohan Sondhi
(Falsely Representing as alleged Member),
R/o 5A, Ayodhya Enclave,
Sector-13, Rohini,
Delhi-110085.
7. Sh. Kuldip Sarna
(Falsely Representing as alleged Member),
R/o G-431, Defence Colony,
New Delhi-110024.
8. Land & Development Office,
Through Land & Development Officer,
Gate No. 4, "A" Wing,
6th Floor, Maulana Azad Road,
Nirman Bhawan,
New Delhi-110011.
9. University of Delhi
Through Vice Chancellor,
North Campus, Chatra Marg,
RCA No. 243/2017 Page No. 2 of 21
Delhi-110007.
10. Sub-Divisional Magistrate/
Registrar of Societies and Firms,
Govt. of NCT of Delhi,
1, Kripanarayan Marg,
Sham Nath Marg,
Delhi-110054. ..............Respondents
Date of institution : 02.11.2017.
Date of pronouncement : 23.04.2022.
of Judgment
For Appellant : Sh. Amit Sethi, Advocate.
For Respondents : Sh. Biju Shankar, Advocate.
JUDGMENT
1. An unsuccessful plaintiff has challenged the judgment and decree dated 12.09.2017 ('impugned judgment') of Ld. Civil Judge-06, Central, Delhi ('Trial Court') whereby the suit of the plaintiff seeking relief of declaration and permanent injunction was dismissed. The appellant and the respondents were the plaintiff and the defendants before the Trial Court and they shall be referred in this judgment as per their original ranks before the Trial Court.
2. In the suit the plaintiff has sought the following reliefs:-
RCA No. 243/2017 Page No. 3 of 21(a) A decree of Declaration thereby declaring the defendant no. 1 as defunct/non-existent society in the eyes of law having failed to abide by the mandatory provisions of Societies Registration Act, 1860.
(b) A decree of Permanent Injunction in favour of plaintiff and against the defendants no. 2 to 7 thereby restraining them jointly and severally from portraying/misrepresenting themselves as alleged members/office bearers of defendant no. 1 and furthermore restraining them from doing any act, deed or thing on the basis of their being alleged members/office bearers of defendant no. 1-sabha or acting in any other manner in the Governing Body of ARSD College.
(c) Cost of the suit.
(d) Any such other or further order(s) which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, in favour of the plaintiff and against the defendants, in order to meet the ends of the justice.
3. Before proceeding further let me take a note of the brief facts of the case of the plaintiff. The case of the plaintiff in brief is that vide an agreement between one Sh. Atma Ram Chadha and defendant no. 1 duly adopted by defendant no.1 by resolution dated 20.05.1968, the plaintiff has been providing the funds to defendant no. 1 for the RCA No. 243/2017 Page No. 4 of 21 running of the Atma Ram Sanatan Dharma College. The said resolution gave the authority to the plaintiff to approve the names forwarded by defendant no. 1 to the governing body of ARSD College. Sh. Atma Ram Chadha was accepted the lifelong chairman of governing body of ARSD College. After his death his son became the trustee of the plaintiff. In February, 2011 Delhi University raised objections for nominating the names on behalf of plaintiff and defendant. Earlier the defendant no. 1 used to nominate the persons which in turn were approved by plaintiff before forwarding the same to the University of Delhi. The letters dated 26.05.2011 and 16.06.2011 of defendant no. 3 forwarding nine names including defendants no. 2 to 7 for their nomination were believed to be true by the plaintiff and were so forwarded to the University of Delhi which also approved the same and thus making them the members of the Society of College. Five members nominated by the plaintiff were also made the members thereof. The plaintiff always believed that defendant no. 1 has been complying with the statutory norms but in February, 2012 for the first time it came to the know the violation of statutory provisions thereof. An application under RTI revealed the violation of statutory provisions by defendant no. 1. On further inquiry the more violations by defendant no. 1 came to fore. The clarifications in this regard sought by the plaintiff from defendant no. 3 got no response. On further inquiry from defendant no. 6 it came to know that he had never accepted his nomination from the governing body and thus was not a member. The plaintiff then sent legal notices to all RCA No. 243/2017 Page No. 5 of 21 the defendants asking them to restrain themselves from representing the defendant no.1. The plaintiff further stated that for non-compliance of the statutory provisions by defendant no.1 had become defunct. The plaintiff further claimed that all the defendants acted in connivance with each other and were in cahoots as a huge sum of Rs.9 Crores was lying in the development fund of the authority and they were putting pressure upon the trust to form different committees. Accordingly, the plaintiff had filed the suit.
4. All the defendant filed a joint written statement to the suit. They claimed the suit to be a false suit with the intention to gain absolute control over the management of the college. They further claimed that the suit is an attempt on the part of the plaintiff to eliminate any possible opposition from any quarter of the governing body as AR of the college. They further contended that the non- compliance of provisions of Section 4 of Society Registration Act does not warrant such penalty so as to declare defendant no. 1 as defunct and they termed it as only curable irregularity. They also contested the suit on merits contending that in the year 1968 when the defendant no. 1 was facing financial constraints Sh. Atma Ram Chadha had helped defendant no. 1 and he was conferred the privilege of being consulted in the matter of nomination of five members of defendant no. 1, however, it was not bound by his advise. Therefore, Sh. Atma Ram Chadha created Atma Ram Trust for discharging of his financial obligations towards defendant no. 1. The defendants further RCA No. 243/2017 Page No. 6 of 21 stated that plaintiff committed the financial irregularities which were the subject to audit by the Government Department. They claimed the list submitted by defendant no. 1 to be genuine. They further stated that they had already taken the steps in response to the letter from Commissioner of Industries, Government of NCT of Delhi vide letter 24.03.2012 and, therefore, no action arose for imposing harsh penalty upon the defendant no. 1. They further submitted that the suit of the plaintiff is a false suit and was rightly rejected by the Trial Court.
5. The plaintiff then filed replication challenging the WS filed by the defendants, further reiterating that the University of Delhi had connived with them which is borne by the fact that it had cleared the names nominated by defendant no. 1. It is also stated that in the writ petition filed by the University of Delhi was restrained from entertaining any list except from Atma Ram Trust for the nomination of the governing board of the college.
6. The Ld. Trial Court vide order dated 11.10.2013 framed as many as following eight issues:-
(i) Whether the defendant no. 1 has not been defunct for not having complied with the mandatory provisions of the Societies Registration Act, 1980 for the past 40 years? OPD RCA No. 243/2017 Page No. 7 of 21
(ii) Whether the Written Statement filed on behalf of the defendant no. 1 and defendants no. 2 to 7 is duly signed and verified in accordance with the Order VI Rule 15 CPC. OPD
(iii) Whether the defendants no. 2 to 7 are members of the defendant no.1 Sabha? OPD
(iv) Whether there is no surviving cause of action in favour of the plaintiff and the suit is liable to be dismissed? OPD
(v) Whether the suit filed by the plaintiff is bad for non-
joinder of Registrar of Societies/ Government of NCT of Delhi? OPD
(vi) Whether the plaintiff is entitled to the relief of declaration as prayed for. OPP
(vii) Whether the plaintiff is entitled for the relief of injunction as prayed for in the first part of the prayer "B"? OPP
(viii) Relief.
7. The trial Court decided the issue No. 6 pertaining to the relief of declaration in favour of the defendant and against the plaintiff. The trial court further decided issue no. 7 pertaining to the relief of injunction in favour of defendant and against the plaintiff.
RCA No. 243/2017 Page No. 8 of 21The trial Court did not decide issue no. 1 which was to the effect whether the defendant no. 1 had not become defunct for not having complied with the mandatory provisions of the Society of Registration Act, 1980 for the past 40 years, observing that in view of its finding on the relief of declaration, the said question can be decided under the appropriate proceedings to be commenced by the Registrar of Societies. The trial Court also did not decide the issue no. 2 which pertains to the effect whether the WS filed by the defendant no. 1 and defendants no. 2 to 7 had not been duly signed and verified in accordance with Order 6 Rule 15 CPC. On the same the trial Court observed that even if it is momentarily held that WS filed by the defendants was grossly effective, then also no effective purpose would be served by deciding the same issue. Accordingly, the trial Court did not decide the said issue. The trial Court also did not decide the issue no. 4 which was to the effect as to whether the plaintiff had no cause of action observing that any cause of action against defendant no. 1 Sanatan Dharam Sabha for its dereliction of the statutory duty can find a forum before the Registrar of Societies. Although it observed that the pleadings of the plaintiff shows the cause of action in its favour. The Trial Court also did not decide issue no. 3 which was to the effect as to whether defendants no. 2 to 7 are members of defendant no. 1 Sabha by holding that the appropriate forum for deciding the said question is Registrar of Societies and not a Civil Court. The trial Court also did not decide issue no. 5 pertaining to the legal objection regarding the non-joinder of the necessary parties on the ground that RCA No. 243/2017 Page No. 9 of 21 since it had declined the relief of declaration and injunction to the plaintiff and further in view of its discussion on the other issues, no fruitful purpose was to be served by deciding this issue.
8. I have heard the arguments advanced by Ld. Counsel for the parties and perused the record carefully. I have also gone through the judicial pronouncements relied upon by the parties.
9. The appellant has filed his written submissions on the record as well whereas the respondents had relied upon the written submissions filed before the Trial Court.
10. Ld. Counsel for the plaintiff has argued at length against the impugned judgment. The first and foremost ground in the arguments taken by the Ld Counsel for appellant is that the present suit should be remanded back to the Trial Court with the directions to give findings on all the issues. He argued that the Trial Court had not treated any of the issues as a preliminary issue, hence, the Trial court was bound to give its findings on all the issues. He further argued that at no point of time in the trial none of the parties had also made request to the Trial Court to treat any issue as a preliminary issue. He placed reliance on the provisions of Order 14 Rule 2 (2) CPC. He further argued that if this court decides all the issues then the appellant shall be deprived of a right of appeal on those issues which are to be decided by this court as the appellant would be deprived an RCA No. 243/2017 Page No. 10 of 21 opportunity of appeal. He further argued that first appeal is a statutory right and the plaintiff cannot be deprived of the same.
11. On the other hand Ld Counsel for respondent on this aspect has argued that issue no. 1 and 6 are one and the same issue as they are substantially the same. He further argued that issue no. 2 on the point of the validity of the WS, is not a necessary issue. He further argued that no injustice was caused by the Trial Court by not deciding the said issue in view of the finding on the issue of declaration. He further argued that issue no. 3 is an inconsequential issue and, therefore, no prejudice would be caused to the appellant if the said issue has not been decided by the Trial Court. He further argued that issue no. 4 is no issue at all as if issue no.6 and 7, which pertains to the relief of declaration and injunction are taken together then issue no. 3 is covered under the said issues. On issue no. 5 i.e. issue of non- joinder of the necessary parties, Ld. Counsel for respondent argued that in his case the Ld. District Judge had added defendant no. 8, 9 and 10 and, therefore, the said issue no. 5 pertaining to non-joinder of necessary parties now has lost its relevance. Therefore, issue no. 6 and 7 are the only relevant issues. He further argued that there is absolutely no ground made out to the remand back of the present suit to the trial Court to give its verdict on the issues left by the Trial Court undecided.
RCA No. 243/2017 Page No. 11 of 2112. Apart from the aforesaid arguments, Ld. Counsel for appellant and the Ld. Counsel for respondents have argued extensively on the appeal, however, I deem it appropriate to deal with the arguments pertaining to the remand back of the case in the wake of no decision of the trial Court on certain issues.
13. The relevant provision to this aspect can be found under the provision of Order 14 Rule 2 CPC which reads as under:-
6. O. XIV R. 2 of the C.l P.C. reads as under:
"2. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settle-
ment of the other issues until after that issue has been deter- mined, and may deal with the suit in accordance with the deci- sion on that issue."
14. Section 14 (2) (1) CPC provides that notwithstanding the fact that a case may be disposed-of on preliminary issue, the Court shall, subject to the provisions of sub rule 2 pronounce the judgment on all the issues. Sub-Section 2 provides that where in the same suit, issues of both, law and fact arises and the Court is of the opinion that the case or any part thereto may be disposed-of on issue of law only, the Court may try that issue first if that particular issue pertains to the RCA No. 243/2017 Page No. 12 of 21 jurisdiction of the Court or to a bar to the suit created by any law for the time being in force. Therefore, the conjoint reading of the provision makes it clear that a court can only dispose-of the suit on a preliminary issue when such preliminary issue pertains to the jurisdiction of the Court or when there is a bar to the suit created by any law which is in vogue.
15. The next question which arises for consideration is when the Court has not treated an issue as a preliminary issue and tried all the issues together, then in such situation can the Court leave an issue undecided in the judgment while not giving any finding on such issue.
16. In the judgment of Chetan Textiles, Bombay Vs. Jethabhai Hirji & Co. & Others, AIR 1985 Guj. 95 it was held by the Hon'ble High Court of Gujarat that it is not open to the Court after framing of all the issues and recording evidence on all the issues to give a finding only on the one issue and refrain from giving findings on other issues. It was further held that the Trial Court has obviously adopted a course which was not permissible under the law in view of the mandate given under Order 14 Rule 2 CPC. The relevant observations are reproduced herein under:-
"6. ..................O. XIV R. 2(1) clearly provides that even though it may be possible to dispose of a case on a preliminary issue the Court should pronounce its judgment on all issues subject to the provisions of sub-rule (2). Sub-rule (2) provides that if there is an issue of law only if that issue relates to the RCA No. 243/2017 Page No. 13 of 21 jurisdiction of the Court or a bar to the suit created by any law for the time being in force, then if the Court thinks fit, it can postpone the settlement of the other issues until after that issue has been determined and the Court may thereafter deal with the suit in accordance with the decision on that issue. As stated above, the Court had not reached a conclusion that an issue of law as contemplated by O. XIV R. 2(2) had arisen in the present case. As a matter of fact, the Court had declined in both the matters to hear the issue of jurisdiction as a preliminary issue and it thereafter proceeded to record evidence on all issues and hear arguments also. In the circumstances, it is clear in view of the provisions of O. XIV R. 2 of the Civil P.C. that it was not open for the Court after framing all issues and recording evidence on all issues to give a finding only on one issue and refrain from giving findings on other issues. The trial Court has obviously adopted a course which was not permissible under the law in view of the mandate under O. XIV R. 2 of the Civil P.C. Such orders therefore cannot be permitted to subsist and have to be set aside.
17. In Kusum Kant T. Nagda Vs. Mariam Bi, 2005 (2) MH L.J. 67, it was held by the Hon'ble High Court of Bombay that once the trial Court has not adopted the procedure prescribed under Order 14 Rule 2 CPC and framed all issues including the issue relating to the merits of the case, therefore, Ld. Trial Court confining its decision to the issue of jurisdiction only was clearly not permissible. The relevant observations are reproduced herein under:-
"9. Even under Order 14, Rule 2 of the Code of Civil Procedure, the trial Court could have considered the question of jurisdiction as a preliminary issue although all other issues have been framed only if it had found it related to the issue of law only. In such circumstances, all other issues are to be settled later, after the issue of jurisdiction is determined. In the present case, the trial Court has not adopted even this procedure as laid down under Order 14, Rule 2 and instead the trial court has framed all issues including the issues relating to the merits of the case. The parties have been permitted to lead evidence in regard to all issues. It is only at the stage of writing the order that the trial Court has confined its decision to only RCA No. 243/2017 Page No. 14 of 21 first issue, that of jurisdiction. In my view, it is clearly an erroneous procedure adopted by the Court. The trial Court ought to have decided all issues since evidence had been led on all issues which had been framed together".
18. In Jagadish Kant Thatte Vs. Municipal Corporation of Greater Mumbai and another, Appeal No. 1107 of 201, decided on 14.03.2007 by the Hon'ble High Court of Mumbai, the Hon'ble High Court considered the judgment of Kusum Kant T. Nagda (Supra). In that case, Ld. Counsel for the Appellant relied upon the Judgment of Kusum Kant T. Nagda (Supra) in support of his contentions that once the trial Court did not decide the issue of jurisdiction as a preliminary issue and recorded the evidence, then the Ld. Trial Court could not have passed an order of returning the plaint. In the said judgment of Jagadish Kant Thatte (Supra), the Hon'ble High Court vide order dated 18.02.2005 referred the matter to the Larger Bench of the Court. Thereafter, the Hon'ble Chief Justice made a reference to the Division Bench and vide order dated 15.12.2006, the Hon'ble Division Bench held that view taken by the single judge in the case of Kusum Kant T. Nagda (Supra) was correct. The Hon'ble High Court in the case of Jagadish Kant Thatte (Supra) also held that once the parties and the Court have chosen not to try the issue with regard to jurisdiction or maintainability of the suit as a preliminary issue and evidence is led on all the issues, therefore, it is necessary for the Court to record findings on all the issues. The relevant observations are reproduced herein under:-
RCA No. 243/2017 Page No. 15 of 21"6. I have considered the submissions. I have already referred the issue which was framed for decision of a larger Bench. It will be necessary to refer to the decision of the Division Bench. In paragraph 11, the Division Bench has considered the provisions of the Code of Civil Procedure, 1908. The Division Bench in the said paragraph proceeded to hold as under:-
"11...If we carefully consider the provisions of Order XIV rule 2 (1) and (2) together, then, it is absolutely clear that once the course contemplated under sub rule (2) of rule 2 of Order XIV of the said code is not followed by the court then the court must necessarily follow the other course which says that the court shall record the findings on all the issues. If, even after not adopting the course contemplated under sub rule (2) of rule 2 of Order XIV, court is allowed to dispose of the matter merely on one issue of jurisdiction or maintainability, even after full trial of the suit, then it would amount to allowing the court to proceed against the letter and spirit of the amended mandatory provision of Order XIV Rule 2 (1). So, once the parties and the court have chosen not to try the issue with regard to jurisdiction or maintainability of the suit as a preliminary issue and on the contrary evidence is led on all the issues and the matter is fixed for final order or judgment then it is necessary for the court to record findings on all the issues. If the court is allowed to pass final order without giving finding on other issues and dispose of the matter simply on the point of jurisdiction at such stage, the very purport of the provision of Order XIV Rule 2 would be defeated. We are, therefore, of the considered opinion that the view taken by the learned Single Judge of this Court in a case KusumKant T. Nagda Vs. Mariambi Ibrahim 2005 (1) All M.R. 255 is correct."
19. In a recent judgment titled as Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557, the Hon'ble Supreme Court has dealt with the issue whether all the issues in a suit should be decided or whether the Court can leave any issue undecided. The relevant observations of the Hon'ble Supreme Court are reproduced herein as under:-
"13. A significant departure has been made in the amended provisions contained in Order 14 Rule 2. Now it mandates the RCA No. 243/2017 Page No. 16 of 21 court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The intend- ment is to avoid remand in the appealable case for deciding the other issues. In case the necessity arises, Order 14 Rule 2(2) en- ables the court to decide the issue of law as a preliminary issue in case the same relates to (1) the jurisdiction of the court, or (2) a bar to the suit created by any law for the time being in force. After the amendment made in CPC in the year 1977, it contains two-fold provision, the question of jurisdiction to en-
tertain the suit has been separated under Rule 2(2)(a) from the expression in Rule 2(2)(b) "a bar to the suit created by any law for the time being in force".
20. In view of the aforesaid observations of the Hon'ble Supreme Court in the case of Nusli Neville Wadia (supra) it is clear that it is mandatory for a Court to pronounce the judgment on all the issues notwithstanding that a case may be disposed-of on a preliminary issue. The intention was to avoid remand in the appellable cases for deciding all the issues. Therefore, it is clear that once the Court had not disposed-of the suit on a preliminary issue then the Court is bound to decide all the issues and cannot leave any issue to be undecided.
21. In a very latest judgment titled as Agricultural Produce Marketing Committee Vs. State of Karnataka & Others, Civil Appeal No. 1347-1374 of 2002, decided on 22.03.2022 while relying upon the judgment of Nusli Neville Wadia (supra) the Hon'ble Supreme Court has held that a duty is cast upon the Court to decide all the issues and pronounce the judgment on all the issues rather than adopting a short cut approach and pronounce the judgment on one issue only. The same would amount to increasing the burden of RCA No. 243/2017 Page No. 17 of 21 Appellate Court and the Appellate Court would have no other option but to remand back the matter for fresh decision. The relevant observation of the Hon'ble Supreme Court are reproduced herein as under:-
"8.4 Therefore, the Courts should adjudicate on all the issues and give its findings on all the issues and not to pronounce the judgment only on one of the issues. As such it is the duty cast upon the Courts to adjudicate on all the issues and pronounce the judgment on all the issues rather than adopting a shortcut approach and pronounce the judgment on only one issue. By such a practice, it would increase the burden on the appellate Court and in many cases if the decision on the issue decided is found to be erroneous and on other issues there is no adjudication and no findings recorded by the Court, the appellate Court will have no option but to remand the matter for its fresh decision. Therefore, to avoid such an eventuality, the courts have to adjudicate on all the issues raised in a case and render findings and the judgment on all the issues involved".
22. In view of the aforesaid settled proposition of law, let us decide, if this case should be remanded back to the trial Court or this Court should proceed to hear on the appeal in its entirety. Ld. Counsel for the respondent has argued that since issues No. 1 & 6 are one and the same issue in substance, therefore, no decision on issue No. 1 is immaterial. He further argued that issue No. 4 regarding the cause of action pertains to the relief of declaration and, therefore, they should be taken together and as such, undeciding the issue No. 4does not cause any prejudice to the appellant. He further argued that the issue No. 5 which pertains to non-joinder of necessary parties has lost its importance as the necessary parties have been arrayed by Ld. District & Sessions Judge.
RCA No. 243/2017 Page No. 18 of 2123. In my opinion, the submissions of Ld. Counsel are not maintainable. Firstly, the Court has not considered the discussions on the issues while taking the issues together for consideration. Therefore, the submissions of Ld. Counsel that decision on one issue should be taken as decision on another issue is not valid. Had it been the case that some of the issues have been taken together for consideration and there were common consideration, then the things would have been different. But since, no two issues were taken together, hence, the trial Court should have disposed off all the issues. Moreover, the submission of Ld. Counsel for the respondent that the issue of non-joinder of necessary parties has lost its importance as the Ld. District & Sessions Judge has arrayed them in the appeal, in my opinion, is also not maintainable. The issue of non-joinder of necessary parties goes to the very root of the suit filed by the appellant. No suit can be effectively decided in the absence of necessary parties, therefore, this issue also should have been decided by the trial Court.
24. The trial Court also did not decide the issue No. 2 pertaining to validity of the written statement filed by the defendants. Order 6 Rule 15 CPC provides as to how the pleadings shall be verified. Had the trial Court come to the conclusion that the written statement placed on record by the defendant has not been validly verified that would have amounted to the fact that defendant had no defence before the trial Court and the defence of the defendant could RCA No. 243/2017 Page No. 19 of 21 have not been taken into consideration. Hence, this issue should also have been disposed of by trial Court. No decision by the trial Court on certain important issues, in my opinion, is a grave error on the part of trial court.
25. In view of the aforesaid settled proposition of law and the material available on record, this Court is of the opinion that the trial Court has committed a grave error by not deciding all the issues, once the trial Court has chosen not to decide any issue as preliminary issue and not disposed of suit as such. It was incumbent on the part of the trial Court to dispose-of all the issues. Any finding given by this Court on the issues not decided by the trial Court would deprive the appellant its first right of appeal on those issues. It is well settled principle of law that first appellant has a statutory right.
26. In view of these discussion, I do not deem it appropriate to deal with other submissions of Ld. Counsel as that would not be appropriate at this stage. Therefore, the impugned judgment passed by the trial Court is hereby set-aside. The matter is remanded back to the trial Court for fresh re-consideration. The trial Court is directed to hear the parties afresh and decide all the issues. The trial Court shall give its finding on all the issues. The trial Court shall not swayed away from any observations in this judgment.
RCA No. 243/2017 Page No. 20 of 2127. The appeal stands disposed-of accordingly. Trial Court record be sent back with an attested copy of this judgment. Appeal file be consigned to Record Room after necessary compliance.
HEM Digitally signed by
HEM RAJ
RAJ Date: 2022.04.23
17:36:39 +0530
Pronounced in the open Court (HEM RAJ)
on 23rd April, 2022. Additional District Judge-08 Central District : Tis Hazari Courts Delhi.
RCA No. 243/2017 Page No. 21 of 21