Himachal Pradesh High Court
Shri Ashok Kumar And Others vs State Of Hp And Others on 16 July, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No. 19 of 2018
Decided on: 10.07.2018
Shri Ashok Kumar and others. .....Appellants.
Versus
State of HP and others ......Respondents.
Coram
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes.
For the appellants: Mr. Ajay Kumar, Sr. Advocate with Ms, Dheeraj Vashisht, Advocate.
For the respondents: Mr. Ashok Sharma, Advocate General with Mr. Ranjan, Sharma, Mr. Adarsh Sharma and Mr. Nand Lal Thakur, Additional Advocate Generals.
Sanjay Karol Acting Chief Justice. (Oral) CMP (M) No. 795/2018.
For the reasons so assigned in the application, delay of 27 days, for we find the appellants to have satisfactorily explained each day's delay, in filing the present appeal, is condoned. We notice that the State does ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 2 not lay challenge to the application also. Accordingly, the application is allowed and the delay in filing the present .
appeal is condoned. The application stands disposed of.
LPA No. 19 of 2018.
2. Having heard learned counsel for the parties appearing before us, we are of the considered view that no ground for interference is made out in the present appeal, assailing the order dated 4.4.2018, passed by the learned Single Judge of this Court in OMP No. 226 of 2017, in Civil Suit No. 114 of 2008, titled Sh. Ashok Kumar and others versus State of HP and others, hereinafter referred to as "the impugned order".
3. It is a matter of record that several issues, both of fact and law, were framed by the learned Single Judge on 21.12.2009, when the Court directed only three issues (issues No. 5,6 and 12) to be treated as preliminary issues for the parties to lead evidence thereupon. Since the year 2009, till July, 2015, parties led evidence only on these three issues, clearly understanding, in our considered view, that ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 3 these are the only issues which require consideration, first, before the Court is called upon to adjudicate, after trial, the .
remaining issues.
4. Significantly, none of the parties laid any challenge to this order dated 21.12.2009, referred to supra, but, in fact, acted thereupon. It is only when the matter, after trial, was fixed for hearing on these preliminary issues, did the plaintiffs/appellants herein file an application dated 14.6.2017, praying for deciding all the issues together, after affording opportunity to the parties to lead evidence. In terms of the impugned order, learned Single Judge has dismissed such application. Hence the present appeal.
5. Mr. Ajay Kumar, learned Senior Advocate, with vehemence argues that the learned Single Judge failed to appreciate the ratio of law laid down by a Full Bench of this Court in Prithvi Raj Jhingta and another versus Gopal Singh and another 2006 (2) Shim.LC 441, more specifically paras 8 and 9 thereof. For the purpose of ready ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 4 reference, we reproduce the principle(s) enunciated therein as under.
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"8. The legislative mandate is very clear and unambiguous. In the light of the past experience that the old Rule 2 whereby, in the fact situation of the trial Court deciding only preliminary issues and neither trying nor deciding other issues, whenever an appeal against the judgment was filed before the Appeal Court and the Appeal Court on finding that the decision of the trial Court on preliminary issues deserved to be reversed, the case per force had to be remanded to the trial Court for trial on other issues. This resulted in delay in the disposal of the cases. To eliminate this delay and to ensure the expeditious disposal of the suits, both at the stage of the trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to the exception created under Subrule (2), all issues, both of law and fact were required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the trial Court on all the issues, both of law and fact.
9. Based upon the aforesaid reasons therefore, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under Subrule (2) where a Court in fact frames only issues of law in the first instance and ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 5 postpones settlement of other issues, under Subrule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts .
and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because Subrule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Subrule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit."
6. After perused the same and heard learned counsel for the parties, we are unable to persuade ourselves to agree with the submission made by Mr. Ajay Kumar, learned Senior Advocate that the Full Bench has held that "under all circumstances" and in any event, once the Court frames issue of law and fact, then the parties are bound to lead evidence on each one of them whereafter only, the ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 6 Court is obliged to decide the same together, without severing the issues of law and fact.
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7. Rule 2 of Order 14 of the Code of Civil Procedure, hereinafter referred to as "the CPC" as it stand post amendment, mandates the decision on all issues together only if the Court is of the opinion that all the issues are to be in the instant case.
r to tried and decided together, which is not the factual position
8. The Full Bench was dealing with a case where the parties had adduced evidence on all the issues and it is in this factual background, did the Court hold that where the Court proceeds to decide all issues together, the principle of severability would not apply. Hence the ratio decidendi is not applicable to the instant case.
9. In this view of the matter, we are not inclined to interfere with the impugned order dated 4.4.2018, passed by the learned Single Judge of this Court in OMP No. 226 of 2017, in Civil Suit No. 114 of 2008, titled Sh. Ashok Kumar and others versus State of HP and others.
::: Downloaded on - 17/07/2018 23:01:58 :::HCHP 710. Having said so, present appeal is dismissed alongwith pending applications, if any.
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(Sanjay Karol), Acting Chief Justice (Ajay Mohan Goel,) Judge July 10, 2018 (cm Thakur ) ::: Downloaded on - 17/07/2018 23:01:58 :::HCHP