Delhi High Court
Kartar Singh vs Rameshwari Kela on 27 July, 1994
Equivalent citations: 1994IIIAD(DELHI)889, AIR1995DELHI73, 55(1994)DLT317, 1994(30)DRJ323, 1994RLR425, AIR 1995 DELHI 73, (1994) 3 CURCC 176, (1994) 30 DRJ 323, (1994) 55 DLT 317
JUDGMENT Jaspal Singh, J.
(1) The dispute revolves around an order of remand passed by the learned Additional District Judge under Order 41 of the Code of Civil Procedure and concerns its legality.
(2) Rameshwari Kela who is the respondent before me had filed a suit for permanent injunction against Kartar Singh appellant seeking to restrain him for raising any construction in the park facing her plot. Kartar Singh contested the suit on various grounds including the plea that the plaintiff being not in possession of the park or any part thereof, the relief of injunction could not be sought and that not only the suit was not maintainable, it was not even properly valued for purposes of court fee and jurisdiction. It was also pleaded that the land in question was not earmarked as a park and that, in any case, there was no contract between the parties regarding the user of the land as a park. The parties went to trial on the following issues: "(1)Whether the suit is correctly valued for the purposes of court fee and jurisdiction? Opp (2) Whether the relief of injunction is not maintainable without being in possession of the property in dispule, regarding which injunction is sought? Opd (3) Whether the suit is not maintainable in the present form? Opd (4) Whether there was any contract or otherwise between the plaintiff and the defendant regarding the user of the park in dispute? Opp (5) Whether the suit plot was earmarked as a park plot by the defendant? Opp (6) Whether the plaintiff is entitled to the injunction prayed for? Opp (7) Relief."
(3) The learned Subordinate Judge held the suit to be maintainable and also properly valued for purposes of court fee and jurisdiction but dismissed it on deciding issues 4 to 6 against the plaintiff. This was in the year 1969. The judgment prompted the plaintiff to file an appeal which saw an order of remand of the suit for redecision on the ground that issue No.2 had not been decided. It is now the defendant in the suit who has filed this appeal.
(4) The entire controversy revolves around the question as to whether the learned Subordinate Judge had decided issue No.2 or not and if not, could the remand of the case "for fresh decision" be taken to be legally tenable, (5) It is paragraph 4 of the judgment of the learned Subordinate Judge which holds the key. Let me reproduce it : "ISSUENos. 1 to 3 4. All these issues have been taken together as they are inter-related. It has been conceded by the learned counsel for the defendant that if at all it is held by the court that the suit is maintainable without being in possession of the suit land then it is correctly valued for the purposes of court fees and jurisdiction. He has urged that the suit for relief of injunction is maintainable only when a person is in possession of a specific property but since it has been admitted by the plaintiff that she is not even in possession of the suit land hence it is asserted that the suit is not maintainable in the present form. On the other hand, it is contended by the learned counsel for the plaintiff that it is not necessary for the plaintiff to be in possession of the park in dispute and as such the present suit is maintainable. To give weight to his contention he has cited number of authorities. It is a fact that the present suit has not been filed in a representative capacity but that would not mean that the plaintiff should have paid the court fee on the value of the land in dispute to get her right declared to the effect that defendant be restrained from interfering her in the use of the park. It has been repeatedly held that the suit for declaration is maintainable to the effect that a particular place was used as a park and even for that no proof of special damage is required. Accordingly I hold that the suit is maintainable in the present form and as such it is properly valued for the purposes of court fees and jurisdiction. Hence both these issues are decided in favor of the plaintiff."
(6) As would be noticed the discussion in paragraph 4 of the judgment is preceded by a head-note namely, "Issues Nos. 1 to 3" indicating thereby that the discussions that followed related to and dealt with the said three issues. The very first sentence which sees the beginning of paragraph 4 is also not less significant. It says: "ALL these issues have been taken together as they are inter related' Had the discussion been confined to two issues only, the formation of the sentence would not have been: "All these issues' but something like: "Both these issues".
(7) It may be recalled that issue No.2 deals with the objection that the suit was not maintainable as the plaintiff was not in possession of the suit land. Keeping this in view if we look at the very second sentence of paragraph 4 of the judgment and what follows thereafter, it would be amply clear that the learned Subordinate Judge was dealing with issue No.2 and so also with the arguments and counter arguments advanced on that issue. It the finding : "I hold that the suit is maintainable in the present form and as such it is properly valued for purposes of court fees and jurisdiction"
is read in conjunction with the second sentence of paragraph 4, namely : "IT has been conceded by the learned counsel for the defendant that if at all it is held by the court that the suit is maintainable without being in possession of the suit land then it is correctly valued for the purposes of court fees and jurisdiction", it would be clearly borne out that the said finding is directly related to issue No.2.
(8) It appears that issues 2 and 3 relate to the same objection. In any case, the confusion has arisen out of the last sentence of paragraph 4 which reads: "Hence both these issues are decided in favor of the plaintiff." Obviously, the word "both" is clearly an unwanted addition on account of typographical error. This mischief of the machine has already eaten away more than two decades. It cannot be allowed to do more damage.
(9) Since I do agree with the learned counsel for the appellant that no issue had been left undecided by the learned Subordinate Judge, the order of remand falls on this ground alone.
(10) Even otherwise, the order of remand cannot be sustained as it remits the case for retrial which was totally uncalled for.
(11) To order retrial of a case is a serious matter and may mean considerable waste of public time. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate.
(12) Here is a case where Issues 2 and 3 are practically the same. In any case, the learned Additional District Judge had sufficient evidence on record to enable him to a just and satisfactory conclusion on the point in controversy. Consequently there was no ground whatever for making an order of remand more so, when such a plea had not even been taken in the grounds of appeal nor convassed. The order of remand was also unwarranted as the decision of the issue in question one way or the other would not have made any difference to the substance of the matter or the nature of the controversy.
(13) Assuming further that the issue in question was material to the controversy and had actually not been decided, I fed it was the duly of the Appellate Court not to set aside the judgment in appeal, but merely relaint it on its own file and direct the trial court to submit its finding on the issue and on receipt of the same, to proceed to judgment.
(14) For what has been recorded above, the impugned order of remand cannot be sustained. It is, therefore, set aside. Since, all the issues stand decided by the learned Subordinate Judge, the learned Additional District judge shall proceed to decide the appeal on merits, No order is made as to costs.