Rajasthan High Court - Jodhpur
Laxmi Lal vs Kamal Kant on 15 November, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 3056 / 2017
Laxmi Lal S/o Sh. Dhul Chand Lakhara, Aged About 44 Years, R/o
43-C- Hudco Colony, Gandhi Nagar, Sector 5, Chittorgarh.
----Appellant
Versus
Kamal Kant S/o Sh. Kalyanmal Garg, R/o Village Nagri, Tehsil and
Distt. Chittorgarh.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. N.K.Rastogi.
For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 15/11/2017 This appeal under Order XLIII Rule 1(u) CPC has been filed by the appellant aggrieved against the order dated 21/8/2017 passed by the first appellate court, whereby, the appeal filed by the respondent has been allowed and matter has been remanded back to the trial court after reframing the issues involved in the matter.
The appellant filed a suit for permanent injunction with the averments that the house situated in Gandhi Nagar, Sector No.5 was handed over through registered agreement to sell to the plaintiff, wherein, he was staying. The defendant has taken loan on the said house, he has not paid the loan and was threatening the appellant for getting the house vacated. It was submitted that as per the agreement, it was agreed between the parties that the sale deed shall be executed after the repayment of bank loan and (2 of 5) [CMA-3056/2017] that the defendant without complying with the requirement of agreement was seeking to dispossess the appellant for which he had no right.
The defendant filed written statement and submitted that the agreement is barred by limitation, the appellant has never been in possession of house no. 43, he has no right, title or possession of house no. 43, he resides in house no. 42 and prayed that the suit be dismissed.
The trial court framed one singular issue as to whether the plaintiff was entitled to seek decree for injunction against the defendant. Evidence was led by the plaintiff and defendant. After hearing the parties, the suit was decreed by the trial court.
Feeling aggrieved, the defendant filed first appeal, the first appellate court by the impugned order dated 21/8/2017 came to the conclusion that the trial court by framing singular issue has not indicated the dispute between the parties and the same has caused prejudice to the defendant. It was further observed that looking to the nature of pleadings of the parties, seven issues arose in the suit, which were then indicated in the order impugned and remanded back the case to the trial court and directed that the parties may be given adequate opportunity to lead evidence on the issues and then to decide the suit.
It is submitted by learned counsel for the appellant that the first appellate court committed grave error in setting aside the decree passed by the trial court and remanding back the matter. It was submitted that when the issues were framed and evidence was led by the parties, no objection pertaining to framing of issues (3 of 5) [CMA-3056/2017] and/or that other issues also arose from the pleadings was made and parties led evidence on the issue framed and, therefore, there was no occasion for the first appellate court to reframe the issues and remand back the matter.
Further submissions were made that even in the memo of appeal filed by the respondent no such objection was raised and, therefore, there was no occasion for the first appellate court to set aside the decree and remand back the matter on the said ground.
Reliance was placed on P.Purushottam Reddy & Anr. Vs. M/s. Pratap Steels Ltd. : 2002 DNJ (SC) 225, Ram Chandra Sharma & Anr. vs. Smt. Veera Saini : 2005 (1) DNJ (Raj.) 20 and Smt. Meena & ors. vs. Shri Deepak Dave & Anr. : S.B.Civil Writ Petition No.291/2016 decided on 5/10/2017.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
A bare look at the judgment of the trial court reveals that the trial court framed singular issue in the nature as to whether the plaintiff was entitled to the relief claimed in the suit and called upon the parties to lead evidence, which evidence was led and the issue was decided in favour of the plaintiff. The provisions of Order XIV provide that issue arises when material proposition of fact or law is affirmed by one party and denied by another and that material propositions affirmed by one party and denied by the other shall form the subject of distinct issue.
In the present case, as would be noticed from the order passed by the first appellate court, as many as seven issues do (4 of 5) [CMA-3056/2017] arise between the parties, however, as already noticed hereinbefore, the trial court did not frame any issue on the said aspects.
If a single issue is framed based on the relief claimed in the plaint, such an issue, which is open ended and vague would lead to a situation, wherein, the parties would be free to lead any evidence whatsoever and the court would then decide the issue in any manner it thought proper and would not be required to render the findings on the material propositions which arise in the suit, which would be contrary to the basic tenet of law requiring framing of distinct issues based on the proposition which arises in the suit and rendering specific finding on the said issues.
Though the first appellate court did not discuss the merits of the case, however looking to the nature of the issue framed by the trial court and the manner in which the said issue has been determined, the first appellate court was fully justified in reframing the issues which arose from the pleadings of the parties and direct the parties to lead evidence and directing the trial court to decide the same in accordance with law, which action of the first appellate court, in the peculiar facts and circumstances of the case, does not call for any interference.
So far as the judgments cited by the learned counsel for the appellant are concerned, there is no dispute pertaining to the principles laid down in the said judgments, however, as already observed hereinbefore, the said principles have no application to the facts of the case, wherein, the trial court has chosen to frame issue based on the relief sought and has not framed any other (5 of 5) [CMA-3056/2017] issue on the material proposition, which arose in the suit.
In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI)J. Baweja-70