Himachal Pradesh High Court
Khem Chand vs Hari Saran And Ors. on 1 May, 1987
Equivalent citations: AIR1988HP10
JUDGMENT P.D. Desai, C.J.
1. This appeal arises from an order of remand passed by the learned Additional District Judge (Special-I), Shimla, which, if upheld, would result in a de novo trial of the suit under circumstances which do not warrant the adoption of such a course.
2. The appellant is the original plaintiff and the respondents are the original defendants. The appellant brought a suit for a declaration that a document purporting to record a compromise between him and the first respondent was void, illegal and inoperative and for the consequential relief in the nature of perpetual injunction restraining the respondents from interfering with his possession over the suit land. The suit was resisted by the contesting respondents, inter alia, on the ground that the compromise in question was arrived at the instance of the appellant and that the same was legal and valid and further that they were in actual possession of the suit land save and except a very small portion thereof on which the appellant had built a house. An alternative plea founded on adverse possession was also raised and it was asserted that even if in the revenue record the ownership and possession was shown to be that of the appellant and of the pro forma respondents, the contesting respondents had acquired title by adverse possession lasting for about twenty-two years.
3. The learned Sub Judge (I), Shimla, who tried the suit, framed the following issues : -
1) Whether the writing of compromise dated 17-2-77 is void, illegal and inoperative, as alleged? OPP.
2) Whether the plaintiff is in possession of the suit land? OPP.
3) Whether the plaintiff is entitled to the relief of injunction, prayed for? OPP.
4) Whether the suit is not maintainable in the present form as alleged? OPD
5) Whether the plaintiff is estopped from his act and conduct to file the present suit, as alleged? OPD
6) Relief.
4. On the basis of the evidence brought on the record of the case, the following findings were recorded against each of those issues : -
Issue No.1 Yes Issue No.2 Yes Issue No.3 Yes Issue No.4 No Issue No.5 No Relief The suit decreed in favour of the plaintiff.
5 . An appeal was carried against the said decision to the District Court. At the hearing of the appeal an argument was advanced before the learned Additional District Judge that the trial court had failed to frame an issue covering the plea of adverse possession and to record a finding thereon and that the same had vitiated the trial and resulted, in miscarriage of justice. The learned Additional District Judge accepted the plea and recorded the following finding on the point accordingly raised for his consideration : -
"The plea of adverse possession never saw the light of the day. No issue was framed on this plea which if proved cuts at the root of the plaintiff's case..... True, the defence set up by the defendants has not been appreciated by the trial court properly as the controversy dealt with by him was so done in a lopsided manner. An issue on the plea of adverse possession set up in the written statement ought to have been framed and decided according to law. Since no such issue was framed, it has resulted not only in irregularity hut also miscarriage of justice....."
6. In view of the finding recorded as aforesaid, the judgment and decree passed by the trial court were set aside and the case was remanded to the trial court with a direction to frame proper issues and to proceed with the trial and to record a decision in accordance with law. Hence the present appeal.
7. Mr. Devinder Gupta, learned counsel for the appellant, has raised two points for my consideration. First, even though no specific issue covering the controversy relating to adverse possession was raised, the parties had gone to trial with the knowledge that the said matter was in issue and they had adduced evidence relating thereto and that under those circumstances the failure to frame the issue was not fatal and even in the absence of a finding recorded thereon by the trial court there was nothing to preclude the lower appellate court from raising the point for determination covering the said controversy and deciding the same on the basis of the evidence which had already been brought on the record and, secondly, in any case, the lower appellate court ought to have framed an issue on the question of adverse possession and referred the same for trial to the trial court with a direction to take additional evidence required and return the evidence together with findings thereon and the reasons therefor and then proceeded to hear and decide the appeal instead of setting aside the decree and ordering a de novo trial on all the issues,
8. I find great merit in the submissions made by the learned counsel for the appellant True it is that the court must frame an issue on every material fact which is in controversy between the parties but every omission to frame an issue is not fatal and the question whether an omission to frame an issue is an irregularity or illegality which has or which has not affected the disposal of the suit on merits requires to be decided on the facts and in the circumstances of each case.
9. In Mitna v. Syed Fuzl, (1870) 13 Moo Ind App 573 at p. 583, the Judicial Committee 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 (appellate) 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 retrial. Their Lordships sitting here are not prepared to say that the Court had not power to do so. (Their Lordships) think that under all the circumstances of the case, substantial justice having been done, there has not been that fatal mistrial 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, AIR 1963 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 mistrial 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. The mere omission, therefore, on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in (sic) the parties having gone to the trial without knowing that the said question was in issue between them and having, therefore, failed to adduce evidence on that point.
11A. In the.instant case, the learned Additional District Judge has failed to examine the record from this point of view and has straightway ordered a remand on the sole ground that there was a failure to frame a material issue which by itself had resulted in vitiating the trial. Granting that there was on the part of the trial court not only a failure to frame the issue but also an omission to discuss and decide the material controversy, there wasnothing to prevent the learned Additional District Judge from himself raising a point for determination covering the said controversy and deciding the same, if it was possible to arrive at the conclusion that the parties had gone to trial knowing that the said question was in controversy between them and that the evidence had been taken thereon which was sufficient to enable him to pronounce a judgment. The failure on the part of the learned Additional District Judge to apply his mind to the case before him from this point of view has resulted in miscarriage of justice since remand has been ordered without applying mind to this material aspect.
12. The result of the appeal need not, however, rest solely on this ground Even if the learned Additional District Judge had found, after having raised a point for determination and after having examined the evidence on record that it was insufficient to enable him to pronounce judgment on the question of adverse possession, he ought to have framed an issue and referred the same for trial to the trial court with a direction to take additional evidence required and to return the evidence together with findings thereon and the reasons therefor and he ought to have then proceeded to hear and decide the appeal. Merely because there was failure on the part of the trial court to frame the issue and also an omission on the part of the parties to lead evidence relatable to the said issue, there was no need to order a de novo trial on all the issues which were duly framed and on which the parties had adduced evidence and gone to trial and on which findings were also recorded by the trial court. The learned Additional District Judge was conscious of the fact that the appeal before him arose out of an old suit, the suit having been instituted way back in 1977, and in such circumstances, it was all the more expedient and even necessary for him to avoid such a wholesale remand since the setting aside of the decree and the remand of the suit for trial afresh on all the issues would not only involve relitigation of the same issues which were earlier tried and decided upon by the trial court at much cost and inconvenience to the parties but also waste of public time and money and delay in the disposal of an old litigation.
13 . For the foregoing reasons, the appeal, is allowed and the impugned decision is quashed and set aside. The case is remitted to the lower appelkte court with a direction to re-admit the appeal on its file and to dispose of the same in accordance with law and in the light of the observations made in the course of this judgment. No costs.