Himachal Pradesh High Court
Shamsher Singh And Others vs Shri Surat Singh on 21 December, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. : 406 of 2010
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Decided on: 21.12.2019.
Shamsher Singh and others ....Appellants.
Versus
Shri Surat Singh ...Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellants : Mr. Basant Pal Thakur, Advocate.
For the respondent : Mr. Peeyush Verma, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this appeal, the appellants have assailed the judgment passed by learned District Judge, Una, in Civil Appeal No. 30 of 2009, dated 04.09.2010, vide which, while allowing the appeal filed by the present respondent/ defendant, the matter stands remanded back to the learned Trial Court for adjudication afresh, after giving opportunity to the respondent herein, i.e. the defendant before the learned Trial Court, to lead evidence.
2. Learned Counsel for the appellants/plaintiffs has argued that the judgment passed by the learned first ::: Downloaded on - 24/12/2019 20:26:26 :::HCHP Appellate Court, whereby the matter stands remanded back to the learned Trial Court, is not sustainable in the eyes of .
law, as while passing the said judgment, learned Appellate Court has erred in not appreciating that it was not a ground taken by the appellant before it that the closure of his evidence by the learned Trial Court was bad. He has further argued that this order was never challenged by the defendants either during the pendency of the suit or by way of taking a specific ground in the appeal. He has further argued that the judgment passed by learned Appellate Court was bad in law as, vide same, learned Appellate Court has set aside the well reasoned judgment of the learned Trial Court without assigning any cogent reason.
3. On the other hand, learned Counsel for the respondent/defendant submits that though no ground was taken in the appeal with regard to the Order, vide which, the evidence of the defendant was closed, yet it cannot be said that judgment passed by the learned Appellate Court was perverse, as in equity, learned Appellate Court passed the judgment of remanding the matter back to learned Trial Court ::: Downloaded on - 24/12/2019 20:26:26 :::HCHP so that the case could be decided on merit after granting opportunity to the defendant to lead his evidence.
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4. Having heard learned Counsel for the parties and having perused the judgments and decrees passed by the learned Trial Court as well as learned Appellate Court alongwith record of the case, in my considered view, the judgment passed by learned Appellate Court is not sustainable in law. It is a matter of record that the evidence of the defendant was closed by learned Trial Court after affording him more than three opportunities to lead evidence.
If a party does not leads evidence despite reasonable opportunities granted to it, then the Court is not supposed to wait till eternity for the party to lead its evidence. It is a conscious act of a party not to lead its evidence and the consequences thereof have to be borne by the party. This extremely important aspect of the matter has not been taken into consideration by the learned Appellate Court while ordering that the defendant be granted opportunity to lead evidence. Not only this, in the absence of there being any challenge to the Order which was so passed by the learned Trial Court while closing the evidence of the defendant, ::: Downloaded on - 24/12/2019 20:26:26 :::HCHP learned Appellate Court erred in adjudicating upon a ground which was not even agitated before it. There is some sanctity .
attached to the grounds of appeal. Appellate Court has to adjudicate an appeal on the grounds pleaded before it against the judgment passed by the lower Court in the light of pleadings and evidence on record. When a party approaches a superior Court in appeal and it takes certain grounds in appeal before it, then it has to be assumed that it is only on those grounds the party intends to assail the order/judgment passed by the Court below. The appellate Court has to decide the appeal on the said grounds of appeal. While deciding the appeal, it cannot assume a role larger than what has been assigned to it by the party which approaches it. Learned Appellate Court admittedly decided the appeal on grounds not pleaded in the grounds of appeal. The findings returned by it that there were good grounds to allow defendant to examine himself in support of his defence, are beyond the grounds of appeal. Ld. Appellate Court erred in not appreciating that it was not hearing an appeal etc. against the order of closure of evidence of the defendant. Yet it decided the appeal as if the appellant was aggrieved by the said order. This has led to ::: Downloaded on - 24/12/2019 20:26:26 :::HCHP perversity in the impugned judgment which therefore is set aside and the appeal is allowed. The matter is remanded back .
to the learned Appellate Court (District Judge, Una), to adjudicate the appeal afresh on the basis of grounds of appeal so filed before it by the defendant. As the appeal pertains to the year 2010, parties are directed to appear before learned Appellate Court (District Judge, Una) on 20.01.2020 and learned Appellate Court shall make an endeavour to decide the appeal positively within a period of six months as from the date when the parties are directed to appear before it.
The appeal stands disposed of in above terms, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge December 21, 2019 (narender) ::: Downloaded on - 24/12/2019 20:26:26 :::HCHP