Himachal Pradesh High Court
Smt. Malti Devi vs Gopi Chand And Others on 30 May, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 362 of 2018 alongwith RSA No. 363 of 2018.
.
Reserved on : 13th May, 2019.
Decided on : 30th May, 2019.
1. RSA No. 362 of 2018.
Smt. Malti Devi .....Appellants/defendants.
r Versus
Gopi Chand and others
....Respondents/plaintiffs.
1. RSA No. 363 of 2018.
Smt. Malti Devi .....Appellant/Defendants.
Versus
Gopi Chand & others
....Respondents/Plaintiffs.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant(s): Mr. Romesh Verma, Advocate in both appeals.
For the Respondents: Ms. Seema K. Guleria, Advocate in both appeals.
1Whether reporters of the local papers may be allowed to see the judgment?
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Sureshwar Thakur, Judge.
.
Both the afore appeals, bearing RSA No. 362of 2018, and, RSA No. 363 of 2018, arise, from a common verdict rendered by the learned Additional District Judge (II), Shimla, upon Civil Appeal no. 41-S/13 of 2013, and, upon Cross-objection No. 41(A)-S/13 of 2014, wherethrough, the aggrieved plaintiffs' appeal, directed, against the decreeing, in part, of the plaintiffs' suit, by the learned trial Court, hence, was allowed, and, the aggrieved counter-claimants/defendants, appeal hence also directed against the dismissal of their counter claim, by the learned trial court, stood rather dismissed.
2. Without delving deep into the merits, of the controversy, it is deemed appropriate, only, to dwell upon, the submission addressed with much vigour before this Court, by the learned counsel, for the appellants/cross-objectors/counter-claimants, whose cross-objections No. 41(A)-S/13 of 2014, directed ::: Downloaded on - 03/06/2019 21:57:58 :::HCHP ...3...
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against, the dismissal, of their counter claim, by the learned trial Court, stood hence dismissed, under, a common verdict recorded thereon, and, upon Civil Appeal No. 41-S/13 of 2013, and, the, entire focus of his address, is hinged, upon, (a) that when previously this Court, upon, being seized with FAO No.276 of 2017, decided on 6.7.2017, and, with, the, afore appeal standing instituted herebefore by the aggrieved appellants, against a composite order of remand previously, made, on 1.4.2016, upon, the afore apposite civil appeal, and, also upon the cross-objections reared by the aggrieved counter-claimant, before the learned first appellate Court, (b) rather this Court while accepting the afore FAO No. 276 of 2017, limiting the quashing, of the impugned decision, rendered by the learned First Appellate Court, only vis-a-vis the verdict recorded, upon, Civil Appeal no.
41-S/13 of 2013, (c) and, thereupon with the order of remand, as previously, made on 1.4.2016, to the ::: Downloaded on - 03/06/2019 21:57:58 :::HCHP ...4...
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remandee court, by the learned First Appellate Court, appertaining to a fresh decision being recorded, upon, the counter claim, of the aggrieved defendants/counter-
claimants, rather remaining intact, (d) consequently, the learned first appellate court, was barred, from, recording 2013, and, to a common verdict, upon, Civil Appeal No. 41-S/13 of upon, cross objections No. 41(A)-S/13 of 2014, whereas, its proceeding to record, a, fresh decision, upon, both, hence, has committed an inherent fallacy. He contends, that, a direction be made by this Court, to the learned trial Court, to proceed to render a decision afresh, upon, the counter claim 161/1 of 2009. However, the afore submission cannot be accepted, as it would lead, to, an ill fortune, also beget travesty of procedure, and, justice, sequeled by the learned first appellate Court, and, the learned trial Court, proceeding independently hence with Civil appeal No. 41-S/13 of 2013, and, counter claim No.161-1 of 2009, and, hence, ::: Downloaded on - 03/06/2019 21:57:58 :::HCHP ...5...
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both being untenably permitted to render conflicting findings, upon, the afore civil appeal and, upon the afore counter claim(s), (I) necessarily, hence, for, avoiding the afore ill-fortune, and, rather obviously for ensuring that no conflicting renditions, are, rendered by the learned the respective r civil to first appellate Court, and, by the learned trial court, upon, appeal, and, upon the civil suit/counter claim, thereupon, the afore infirmity, rather enjoins rendition, of, a direction qua the composite order recorded by the learned first appellate Court, on 28.4.2018, both upon the afore civil appeal, and, upon the afore cross-objections, being quashed and set aside.
The afore would also beget, the, requisite curable rectification(s).
3. Consequently, both the appeals are allowed, and, the impugned common judgment and decree rendered upon Civil Appeal No. 41-s/13 of 2013, and, upon, cross objections No. 41(A)-S/13 of 2014, is set ::: Downloaded on - 03/06/2019 21:57:58 :::HCHP ...6...
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aside. However, a direction, of, remand, is made, upon, the learned First Appellate Court, necessarily, for avoiding the emanation of conflicting verdicts, upon, the afore Civil Appeal No. 41-S/13 of 2013 and Cross Objection No. 41(A)-13/ of 2014, to within three months from aforesaid.
today, render
fresh decision(s),
The parties are directed to appear before the r upon, both learned first Appellate Court on 29th June, 2019. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 30 th May, 2019. Judge.
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