IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(Ord.) No.369 of 2003. Date of decision: 12.05.2008. Mansha Ram Sharma …Appellant Versus State of H.P. & Others …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J.(Oral): This appeal has been filed under Order 43 Rule 1(u) of the Code of Civil Procedure against the order passed by the District Judge, Bilaspur, remanding the suit filed by the plaintiff-respondent for trial afresh. The plaintiff herein, that is the State of Himachal Pradesh, has preferred a suit praying for a decree declaring the judgment and decree dated 4.2.1993 as not binding on the interest of the plaintiff-State on the allegation that the defendants in connivance with each other had obtained a judgment and decree for the suit land 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 declaring them to be the owners etc. It was alleged that Shri Mansha Ram, in connivance with defendants No.2 and 3, had instituted an earlier suit in which a declaration had been granted that he was owner in possession of the house and land and consequential decree of permanent prohibitory injunction restraining them from interfering in the suit land etc. In para-5 of the plaint specific allegation made is: “5. That in-fact Defendant No.1 in connivance with defdt. No.2&3 filed collusive suit and the State of H.P. who was the owner of the suit land was not made party in the said suit”. Notices had been issued to the defendants on 25.3.1996. The learned trial Court dismissed the suit against defendants No.2 and 3. This action was taken pursuant to Order 9 Rule 2 of the Code of Civil Procedure as the plaintiff had not paid process fee for service of these defendants for the last more than 1½ years despite repeated opportunities and adjournments being granted. The order reads:- “25.3.1996: Present: Shri R.D. Poswal, Ld.ADA for the State. Shri D.S. Kutal Advocate for the defendants. 3 Today was fixed for the service of defendants No.2 and 3. But again plaintiff did not file correct address and process fee etc. for the service of defendants No.2 and 3. Hence, defendants No.2 and 3 could not be served. The court file reveals that this case has been pending for the service of defendants No.2 and 3 since, 27.9.94, that means for the last one and half years the defendants No.2 and 3 could not be served for want of steps to be taken by the plaintiff. Today learned ADA again prayed time. But after due consideration the prayer is rejected and suit against defendants No.2 and 3 is hereby dismissed under order 9 rule 2 C.P.C. As said defendants could not be served inconsequence plaintiff’s failure to pay court fee etc. for such service. Put up on 27.4.96 for filing of written statement by defendant No.1.” Issues were framed in the suit on 27.9.1996 and issue No.2, as to whether the suit was not maintainable, was taken up and tried as a preliminary issue. The appellant herein had taken a number of objections on the maintainability of the suit including the fact that the averments made by the plaintiff (respondent herein) were mutually 4 destructive as the plaintiff had admitted that in the prior suit, which judgment was sought to be annulled, the plaintiff was a party and absented himself from trial without any justifiable cause. It was also pleaded that this suit was not maintainable as under Section 34 of the Specific Relief Act, a mere declaratory decree without consequential relief could not be granted. The suit was dismissed by the learned trial Court on 22.11.1996 holding that: “22.11.96 Present: Shri R.L. Saini, Ld.ADA for plaintiff. Shri D.S. Kutal, Advocate, for defendant No.1. Suit against defendants No.2 and 3 already dismissed. This order shall dispose off the issue No.2 which was tried as preliminary issue as to the maintainability of the suit. As per defendant Mansha ram the suit of the plaintiff in the present form is not maintainable. Because plaintiff has only filed the suit for declaration challenging the decree passed by Sub Judge Bilaspur in a Civil Suit dated 4.2.93 qua the land in dispute. But, no consequential relief was prayed for by the plaintiff. I have heard both the parties and gone through the relevant record carefully. I am 5 in agreement with the objection raised by the defendant as to the maintainability of the suit. In view of proviso of section 34 The Specific Relief Act, 1963 no court shall make any declaration whether the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In view of said mandatory provision of law the present suit of the plaintiff for simple declaration is not maintainable. Because, the present suit the plaintiff should have also prayed for the consequential relief of injunction against the defendants not to interfere in the suit land on the basis of above said decree. Consequently, the suit of the plaintiff is not maintainable and the issue No.2 is accordingly, decided in favour of defendant. Since, the suit of the plaintiff is not maintainable in the present form, in view of section 34 of Specific Relief Act, therefore, the suit is accordingly dismissed. File after needful be consigned to record room”. The plaintiff filed an appeal against this order and the appellate Court has set aside the judgment remanding the suit for re-determination by the trial Court. While determining the controversy raised in the appeal, the appellate Court has ignored the 6 important pleadings and law and adopted a conjectural approach. Surely being the first Court of fact it was incumbent and mandatory for the learned District Judge to have decided the issue in accordance with law and not by pre-judgmental approach of the issue. In any event, the approach of both the courts below needs to be deprecated. In Prithvi Raj Jhingta and another vs. Gopal Singh and another, 2006(2) Shim.L.C. 441, Full Bench of this Court has held: “9. Based upon the aforesaid reasons therefore, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub- rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for 7 decision. This course of action is not available to a Court because sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.” Even assuming that the case was to be dismissed on the mere pleadings of the parties, the least which the trial Court should have done was to refer to the evidence on the record to show the existence of a fact (unless proof was dispensed with by admission) showing that the suit was not maintainable. Surely, in original proceedings, evidence has to be led on the record in order to show that a particular fact is either, proved, not proved or disproved, the exception being an admission dispensing proof. The District Judge refers to material on record on his own to demonstrate that the judgment of the trial Court is wrong. This approach needs to be deprecated. The 8 judgment in appeal is, therefore, quashed and set aside. The District Judge is directed that the matter shall be referred to the trial Court for decision afresh in accordance with law and keeping in view the judgment of this Court in Prithvi Raj Jhingta’s case (supra). For this purpose the parties shall appear before the District Judge on 30.6.2008, who will thereafter fix a date for the appearance of the parties before the trial Court. May 12,2008. (Dev Darshan Sud) (aks) Judge.