IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 261 of 2007. Date of decision March 28, 2008. Smt. Asha Shelly …. Appellant. Versus Sh. Mohinder Shelly & another …. Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellant: Mr. O.P.Sharma, Senior Advocate, with Mr. K.R.Kashyap, Advocate. For the respondents Mr. Ramakant Sharma, Advocate. Dev Darshan Sud, J. (Oral). This appeal and connected matters have been disposed of and decided by this Court on 13.4.2004 against the judgment and decree of the learned District Judge, Kinnaur Civil Division at Rampur Bushahar in Civil Appeal No. 3 of 2007. The appellant herein is the plaintiff who filed a suit for partition of the suit property as 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - described in the plaint. The learned trial Court, on considering the entire evidence, passed a decree in favour of the appellant in the following terms: “25. In view of my findings on issues no. 1 to 7 above, suit of the plaintiff is decreed with cost. Preliminary decree is passed in favour of the plaintiff to the effect that the plaintiff is held entitled for 2/3rd share and the defendant is held entitled for 1/3rd share in the suit property comprised in khata khatauni no. 96/302, khasra nos. 1341 and 1405, kita-2, measuring 0-05-21 hects, situated at Gaura, Tehsil Rampur Bushahar, District Shimla, H.P. Decree sheet be drawn accordingly. File after its due completion be consigned to the record room.” In an appeal preferred by the contesting defendant Shri Mohinder Shelly, the learned District Judge holds that additional issues are required to be framed which he did in the following terms: “7-A. Whether the settlement deed Ext. PW-2/B is admissible under the law and is enforceable? OPP. - 3 - 7-B. Whether the suit of the plaintiff for partial partition is maintainable as claimed by the plaintiff? OPP. 7-C Whether the plaintiff is entitled to 2/3rd share in the suit property as claimed by her? OPP. 7-D Whether the application of the plaintiff for partition is pending before the Revenue Court, if so, its effect? OPP. He thereafter proceeded to set aside the judgment and decree of the trial Court and remanded the matter for trial afresh along with the issues as framed. Learned counsel for the appellant submits that the appeal requires to be heard on substantial question of law “Whether the learned District Judge was correct in framing additional issues and if such issues were required, whether the Court was correct in remanding the matter or was to be dealt with in accordance with the provisions of Order 41 Rule 24 of the Code of Civil Procedure?” By consent of the parties, the matter is being disposed of at the initial stage. It is by now well settled that wholesale remand is to be avoided. Order 41 Rules 24 of the Code of Civil Procedure provide that if the evidence on record is sufficient to enable the appellate - 4 - Court to pronounce judgment, it may, after resettlement of issues if necessary, finally determine the suit notwithstanding that the judgment of Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds. Rule 25 of the Code provides that where the Court from whose decree the appeal is preferred, has omitted to frame or try any issue or to determine any issue on fact which appears to the appellate Court as necessary and essential to the right decision of the suit, the appellate Court may, if necessary frame issues and refer the same for trial to the trial Court. On receipt of such reference, the trial Court shall proceed to try such issues and return the evidence to the appellate Court together with its findings thereon and the reasons therefore. The learned appellate Court has not undertaken this exercise. Both these Rules in the Code are meant to cut short the time in the trial of the suit. It is trite that remand of a case would again entail the matter being tried afresh. It was for the appellate Court to have considered whether the evidence on record is sufficient in terms of Order 41 Rule 24 or of the - 5 - Code, or fresh findings are called for on certain issues. Remanding the matter after setting aside the judgment and decree was not the proper procedure to have been followed by the learned appellate Court. According to the learned appellate Court, the issue which has been framed is whether the settlement deed Ex.PW-2/B is admissible under the law and enforceable and whether the suit for partial partition is maintainable? Surely, these were questions which could have been decided on the evidence on record. The two other issues as noticed related to the maintainability of the suit which could be decided on the pleadings of the parties. In any event, if evidence was required, the proper method was to have referred the case to the learned trial Court under Order 41 Rule 25 of the Code and call for a finding on these issues. The order of the learned appellate Court cannot be sustained and is against the very provisions of law. In the facts and circumstances of the case, this appeal is allowed. The question of law is answered in favour of the appellant and against the defendants. The judgment and decree of - 6 - the learned appellate Court is quashed and set aside and the following directions are issued: 1) The appeal shall be treated, for all intents and purposes, as pending on the file of the learned appellate Court; 2) The issues which have been framed by the learned appellate Court will be referred to the learned trial Court and evidence, if not already on record, shall be recorded on these issues by the learned trial Court. It goes without saying that the both the parties shall be given an equal opportunity of leading their respective evidence; 3) The trial Court will return its findings on the issues to the learned appellate Court who shall then proceed with the appeal in accordance with law. The parties shall appear before the learned District Judge on 17.6.2008 who shall thereafter fix a date for their appearance before the learned trial Court. He will send the necessary record for recording of evidence and determination of necessary issues to the learned trial Court. The appeal is disposed of in these terms. There shall be no order as to costs. Records be sent back immediately. - 7 - March 28, 2008 (PC). (Dev Darshan Sud), J.