Punjab-Haryana High Court
Santosh vs Ranbir Singh And Ors on 19 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
SAO No.1 of 2011 -1-
SAO No.2 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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1. SAO No.1 of 2011
Date of Decision: 19.09.2014
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Smt. Santosh
. . . .Appellant
Versus
Ranbir Singh and others
. . . . Respondents
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2. SAO No.2 of 2011
Date of Decision: 19.09.2014
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Smt. Santosh
. . . .Appellant
Versus
Ranbir Singh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Sandeep K. Sharma, Advocate,
for the appellant.
Mr.Ramandeep Singh, Advocate,
Mr.Dinesh Arora, Advocate,
for respondents No.2 & 3.
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RAKESH KUMAR JAIN, J. (ORAL)
This order shall dispose of two appeals bearing SAO No.1 of 2011 titled as "Smt. Santosh Vs. Ranbir Singh and others"
and SAO No.2 of 2011 titled as "Smt. Santosh Vs. Ranbir Singh and others". However, for convenience, the facts are being extracted from SAO No.1 of 2011.
VIVEK PAHWA 2014.09.23 13:56 I attest to the accuracy and integrity of this document SAO No.1 of 2011 -2- SAO No.2 of 2011
In brief, the facts narrated before me are that Civil Suit No.186 of 2001 was filed by Santosh on 30.8.2001 seeking permanent injunction in which Ranbir Singh (respondent No.1 herein) also became a party by filing an application. While the said suit was pending, Ranbir Singh (respondent No.1 herein) filed Civil Suit No.395 of 2001 on 16.10.2001 also for permanent injunction against the present appellant/Santosh.
Respondent No.1 filed an application before the trial Court for clubbing the suit which was allowed vide order dated 11.2.2009 (Annexure P-2) and the suit filed by Ranbir Singh which though is late in time was treated as lead case i.e. 'case No.1'. Although issues were framed in both the suits but while deciding the lead case, it was observed by the trial Court that "for adjudication of both cases, findings on issues of case No.1, shall be operative upon both the cases".
It is fairly submitted by learned counsel for the appellant that evidence had already been recorded in both the civil suits and at the stage of rebuttal and evidence, they were clubbed and case No.1 filed by Ranbir Singh was treated as 'case No.1' (lead case). The trial Court after appreciation of evidence, available on record of the lead case, dismissed case No.1 and decreed case No.2 filed by the present appellant. This led to the filing of two appeals, namely, Civil Appeal No.89 of 2009 titled as Ranbir Singh Vs. Smt. Santosh and others and Civil Appeal No.90 of 2009 titled as Ranbir Singh and others Vs. Santosh against the decree passed in favour of Santosh in Civil Suit No. 186 of 2001 and dismissal of Civil Suit VIVEK PAHWA 2014.09.23 13:56 I attest to the accuracy and integrity of this document SAO No.1 of 2011 -3- SAO No.2 of 2011 No.395 of 2001 filed by Ranbir Singh. The Appellate Court while exercising the power under Order 41 Rule 23 of the Code of Civil Procedure, 1908 [for short 'the CPC'] remanded both the cases to the trial Court on the ground that it had failed to record finding on the issues framed in case No.2 i.e. Civil Suit No.186 of 2001. It has also observed that the trial Court shall decide the suit afresh in view of the provisions contained in Section 10 and Order 20 Rule 5 of the CPC.
Learned counsel for the appellant has submitted that the learned Appellate Court has erred in passing the impugned order because firstly, the appellate Court cannot exercise its jurisdiction under Order 41 Rule 23 of the CPC as it deals with a situation where preliminary point is decided. The correct provision which is to be invoked by the Court is under Order 41 Rule 23-A of the CPC. Secondly, it is submitted that application under Section 10 of the CPC has not even been filed by the respondents which otherwise could have been filed by the appellant because her suit is prior in time as it was filed on 30.8.2001 whereas the suit of respondent No.1/Ranbir Singh was filed on 16.10.2001. Thirdly, Order 20 Rule 5 of the CPC provides that the Court should give finding on all the issues and therefore, the Appellate Court has remanded the case back under the impression that since finding has not been returned by the trial Court on all the issues framed in Civil Suit No.186 of 2001 (2nd case), therefore, there is an error on the part of the trial Court. It is submitted that this aspect has already been dealt with by the trial Court when it was observed that at the time of VIVEK PAHWA 2014.09.23 13:56 I attest to the accuracy and integrity of this document SAO No.1 of 2011 -4- SAO No.2 of 2011 adjudication of both cases, findings on issues of case No.1 shall be operative upon both the cases. Thus, there was no need for the trial Court to decide all the issues framed in second case i.e. Civil Suit No.186 of 2001 as the dispute between the parties is with regard to the same property as in second case i.e. Civil Suit No.186 of 2001 filed by Santosh, she is claiming her possession and in case No.1 i.e. Civil Suit No.395 of 2001, respondent No.1/Ranbir Singh is claiming his possession over the property in dispute. However, the trial Court has found possession of Santosh/plaintiff in Civil Suit No.186 of 2001 (second case).
In view of the aforesaid discussion, I find that the Appellate Court has committed patent error of law in remanding the case to the trial Court. Moreover, it is stated that the case cannot be remanded until and unless the Appellate Court sets aside finding recorded on the other issues on merits, but in the present case, the findings on other issues have not been touched.
In view thereof, both the appeal, namely, SAO No.1 of 2011 titled as "Smt. Santosh Vs. Ranbir Singh and others" and SAO No.2 of 2011 titled as "Smt. Santosh Vs. Ranbir Singh and others" are hereby allowed and the impugned order is set aside.
(RAKESH KUMAR JAIN) 19.09.2014 JUDGE Vivek VIVEK PAHWA 2014.09.23 13:56 I attest to the accuracy and integrity of this document