Himachal Pradesh High Court
Sh. Madan Lal vs Smt. Soma Devi And Others on 13 November, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 401 of 2017 a/w FAO No. 402
of 2017
.
Date of Decision: 13.11.2019
______________________________________________________________________
FAO No. 401 of 2017
Sh. Madan Lal ....Appellant.
Vs.
Smt. Soma Devi and others .....Respondents.
FAO No. 402 of 2017
Sh. Madan Lal ......Appellant.
Vs.
Smt. Soma Devi and others ......Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
FAO No. 401 of 2017 a/w FAO No. 402 of 2017
For the appellant(s): M/s Dushyant Dadwal and Subhash
Chander, Advocates, in both the appeals.
For the respondents: Mr. T.S. Chauhan, Advocate, for
respondents No. 1 to 3 in both the
appeals.
M/s Vandana Mishra & Baljinder Singh,
Advocates, for respondent No. 4 in both
the appeals.
Ms. Vandana Kumari, Advocate, for
respondent No. 5 in both the appeals.
Ajay Mohan Goel, Judge (Oral):
FAO Nos. 401 and 402 of 2017 As common issues arise for adjudication of the present appeals, they are being disposed of by a common judgment. 1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 22. Brief facts necessary for the adjudication of the present appeals are as under:
.
AppellantMadan Lal filed a suit for permanent prohibitory injunction against the contesting respondents, inter alia, on the ground that appellant alongwith proforma defendants was owner in possession of the suit land and contesting respondents No. 1 to 3, who were strangers to the same, were interfering with the same without any rhyme or reason.
3. While denying the said claim of the plaintiff before the learned Trial Court, contesting respondents also filed a counter claim on the ground that counter claimants were owners in possession of the suit land and revenue entries in favour of the plaintiff/noncounter claimant reflecting him to be the owner in possession of the suit land were incorrect, as counter claimants earlier used to be the nonoccupancy tenant over the suit land and subsequently by operation of law, they had become owners of the same.
4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:
"1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed? OPP
2. Whether the suit is not maintainable, as alleged? OPD
3. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD.::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 3
4. Whether the defendant No. 1 Gorakh Ram is owner in possession over the suit land, as alleged? OPD.
.
5. Whether the counter claimants/defendants are entitled to the relief of declaration, as prayed? OPD/CC
6. Whether the counter claim is not maintainable, as alleged? OPP/NCC
7. Relief."
5. On the strength of the evidence which was adduced by the parties before the learned Trial Court, the issues so framed stood decided as under:
"Issue No. 1: Yes.
Issue No. 2: No.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: Yes.
Relief: The suit of the plaintiff is decree
and counterclaim of the
defendant/counterclaimant is
dismissed with costs as per
operative part of the judgment."
6. Learned Trial Court vide judgment and decree dated 24.11.2015 decreed the suit filed by the plaintiff to the effect that defendants were restrained from causing any interference in any manner ::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 4 whatsoever over the suit land, whereas counter claim filed by the defendants was dismissed.
.
7. Feeling aggrieved, the contesting defendantSmt. Soma Devi filed two appeals before the learned Appellate Court, i.e., appeal against the judgment and decree which was passed by the learned Trial Court in favour of the plaintiff as also an independent appeal against the dismissal of the counter claim.
8. Vide impugned judgment, the appeal filed by the contesting defendant stands allowed by the learned Appellate Court to the extent that the judgment and decree passed by learned Trial Court have been set aside and the matter has been remanded back with the direction to decide the suit afresh by giving findings on all issues already framed by the learned Trial Court as also additional issues, which stand framed by the learned Appellate Court. The judgment passed by the learned Appellate Court stands assailed by way of these two appeals by the appellantplaintiff.
9. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Trial Court as well as the judgment passed by the learned Appellate Court.
10. The issues which learned Trial Court framed on the basis of pleadings of the parties have already been enumerated by me hereinabove. While deciding the appeals, learned Appellate Court framed ::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 5 the following additional issues, which in the wisdom of the learned Appellate Court were necessary for the adjudication of the suit:
.
"1A. Whether plaintiff has purchased the suit land through sale deed from Shri Nathu Ram, as alleged. If so, its effect? OPP 1B. Whether Shri Nathu Ram had purchased the suit land from Shri Anant Ram through sale deed, as alleged. If so, its effect?
OPP.
1C. Whether plaintiff alongwith proforma defendant is owner in possession of the suit land, as alleged? OPP 1D. Whether the counter claim is bad for nonjoinder of necessary parties? OPP 1E. Whether the counter claimant has no cause of action to file the counter claim? OPP 1F. Whether the counter claimant has no locus standi to file the counter claim? OPP 1G. Whether the counter claimant is estopped by his act, conduct, omission and commission from filing the present counter claim?
OPP 1H. Whether the counter claim is bad for want of necessary parties? OPP 1J. Whether civil Court has no jurisdiction to try and decide counter claim? OPP 3A. Whether Khasra No. 14 and 15 were converted into new Khasra No. 10, as alleged? If so, its effect? OPD ::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 6 3B. Whether Shri Gorakh Ram, son of Shri Gosaun was tenant over the entire land which also includes the suit land and has become .
owner in possession of the suit land by operation of law. If so, its effect? OPD.
3C Whether the revenue entries qua the suit land are wrong, null and void in favour of plaintiff and proforma defendant? OPD.
3D Whether the defendants/counter claimant are entitled to the decree of permanent prohibitory injunction? OPD."
11. Order XIV of the Code of Civil Procedure deals with Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon. Rule 1 thereof provides that Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Subrule (5) of Rule 1 further provides that at the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
::: Downloaded on - 16/11/2019 20:23:52 :::HCHP 712. In view of the said provisions of the Code of Civil Procedure, learned Trial Court framed the issues for determination of the .
lis between the parties on 03.07.2008. While setting aside the judgment and decree so passed by the learned Trial Court on the basis of the issues which were so settled, learned Appellate Court has framed as many as 13 additional issues termed as Issues 1A to 1J and 3A to 3D and remanded the matter back to the learned Trial Court to decide the said additional issues afresh alongwith other issues which stood framed by the learned Trial Court.
13. In my considered view, a material irregularity has been committed by the learned Appellate Court while remanding the matter back to the learned Trial Court with the direction for adjudicating the case afresh on the additional issues, which stood framed by the learned Appellate Court. This I say for the reason that a close scrutiny of the pleadings of the parties demonstrates that the issues which were framed by the learned Trial Court, covered all the points which stood pleaded in the plaint, written statement as also the counter claim. There was no necessity for the learned Appellate Court to have had framed 13 additional issues and thereafter remand the matter back to the learned Trial Court for adjudication afresh. Learned Appellate Court erred in not appreciating that the issues which were framed by the learned Trial Court, in fact, took into its ambit all the additional issues which now have been framed by he learned Appellate Court. Issues No. 1 to 6 framed ::: Downloaded on - 16/11/2019 20:23:53 :::HCHP 8 by the learned Trial Court were wide enough to take in their ambit the pointers which now have been raised by the learned Appellate Court by .
way of framing 13 additional issues under heading 1A to 1J and 3A to 3D. In fact, if the judgment which has been passed by the learned Appellate Court is allowed to operate, then what will happen is that post remand of the case, the parties will be given opportunity to fill up the lacunae which may be existing in their respective cases. This is not something which the Appellate Court is expected to do. Once the matter stood decided by the learned Trial Court on the basis of the issues which stood framed by it and there was no objection by either of the parties at any stage that the issues which were framed by the learned Trial Court were inappropriate, nor any request was made before the learned Trial Court by any party for framing of additional issues, qua which power does vests with the learned Trial Court, learned Appellate Court ought to have decided the appeals on merit rather than following the course of framing 13 additional issues and then remanding the case back to the learned Trial Court for adjudication of the case afresh. The remand order otherwise also is not in consonance with the provisions of Order 41, Rule 25 of the Code.
14. Accordingly, in view of the observations made hereinabove, these appeals are allowed. Judgment dated 23.05.2017, passed by the learned District Judge in Civil Appeal No. 3/13 of 2016 and Civil Appeal No. 19/13 of 2016, vide which, it has allowed the ::: Downloaded on - 16/11/2019 20:23:53 :::HCHP 9 appeals filed by the present contesting respondentSmt. Soma Devi, is set aside and both the appeals are remanded back to the learned Appellate .
Court with the direction to decide the said appeals on merit on the basis of grounds of appeal which stand taken before it by the appellant(s) therein and on the basis of pleadings and evidence on record.
Parties through learned counsel are directed to appear before the learned Appellate Court on 23rd December, 2019.
Appeals stand disposed of in above terms, so also pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge November 13, 2019 (bhupender) ::: Downloaded on - 16/11/2019 20:23:53 :::HCHP