Punjab-Haryana High Court
Narinder Kumar And Ors. vs Kuldeep Singh And Ors. on 6 September, 2002
Equivalent citations: (2003)133PLR335
Author: J.S. Narang
Bench: J.S. Narang
ORDER J.S. Narang, J.
1. Learned counsel for the parties are ad idem that the impugned order dated July 30, 1992, is not sustainable as the matters between the parties have not been succinctly dealt with and decided.
2. It is also agreed that the appeal which was remitted to the lower appellate Court against the order vide which leave to file the suit under Section 92 of the C.P.C. had been declined by the trial Court, has also been dismissed incorrectly vide order dated March 20, 1991. The question of law which had been raised in respect of the matter which has arisen, have not been dealt with and utter confusion has been created by virtue of passing of the aforesaid two orders. It is fairly admitted that the order dated March 20, 1991, has not been questioned by anyone but by virtue of the aforesaid order the appellant has been given the right to assail the order of the trial Court in appeal against the main judgment and decree passed by the trial Court which has now been decided by order dated July 30, 1992. It shall be apposite to note that the question relating to granting of leave to file the suit has not been touched nor any finding in respect thereof has been returned by the lower appellate Court.
3. In view of the above, it is considered appropriate that if the appeals are remitted to the lower appellate court for deciding afresh and of course by taking into consideration the respective arguments and the facts brought on record, the matters may get settled finally. The lower appellate Court has remitted the suit to the trial Court vide order dated 30.7.1992 but of course without rendering any decision upon the order vide which leave to file the suit under Section 92 C.P.C. has been declined by the trial Court. Thus, remitting the suit to the trial Court would be of no consequence unless the order passed by the trial Court in declining the leave is dealt with accordingly. If no finding is returned thereon, the trial Court shall be left with no other alternative but to dismiss the suit on that ground alone.
4. However, without expressing any opinion on merits viz-a-vis the pleas of the parties, I consider it appropriate that the present appeal deserves to be accepted and the matter requires to be remitted to the lower appellate court for a fresh decision. It shall also mean that the order dated March 20, 1991, shall also not come in the way of the lower appellate Court while deciding the appeal filed against the order of the trial Court vide which the leave to file the suit has been declined. It shall be appreciated, if the appeal against the order vide which leave to file the suit has been dealt with, is decided separately and a separate order is passed accordingly.
5. It may be noticed that the lower appellate Court has decided certain misc. applications relating to seeking the amendment and also an application for production of additional evidence. It shall be appropriate if those applications are also decided by way of a separate speaking order(s) after considering the respective pleas of the parties.
6. Resultantly, the appeal is allowed and both the appeals as aforesaid are remitted to the lower appellate Court to be decided by separate speaking orders. The Misc. Applications be decided separately in pursuant to the pleadings of the parties. It is directed that both the appeals i.e. C.A. No. 222/7.10.1988 and C.A. No. 227/7.10.1988, and the applications be decided by the learned District Judge, Ropar, within six months. The parties are directed to appear themselves or through counsel before the leaned District Judge, Ropar, on 2.12.2002.
Registry is directed to return the record before the date fixed before the lower appellate Court.
The appeals stands disposed of accordingly.