IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 511 of 2009 Date of decision: 07.07.2010 Deepika and others ... Appellants Versus Piar Chand and others ... Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Ramakant Sharma, Advocate. For the respondents: Mr. Adarsh K. Vashisth and Mr. R.S. Kanwar, Advocates, for respondent No. 1. Ms. Shalini, Advocate, Court Guardian, for respondent no. 5. V.K. Ahuja, J. (Oral): This is an appeal filed by the appellants under Order 43 Rule 1 Sub Rule (U) of the Code of Civil Procedure against the judgment passed by the Court of learned District Judge, Chamba, dated 4.11.2009, vide which he set aside the judgment and decree dated 31.12.2007 passed by the learned Civil Judge (Jr. Division), Chamba, dismissing the suit of the respondents and the case has been remanded to the trial Court for giving findings on all the issues. 2. Briefly stated, the facts of the case are that a suit for declaration and permanent injunction was filed by the plaintiff in regard to the land in suit alleging that he was owner in possession of the suit land and the defendants have no right, title or interest over the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 suit land. It was further alleged that the revenue entries made by A.C. 2nd Grade vide Mutation Nos. 1168, 1169, 1170, 1171 dated 16.1.1995 and order of Land Reforms Officer dated 7.3.93/94 on the basis of wrong entries of date of birth of defendant No. 3 in the school record are illegal and inoperative. The suit was contested by the defendants. 3. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the plaintiff alolngwith proforma defendant No. 7 is owner in possession of the suit land as alleged? OPP 2. Whether date of birth of defendant No. 3 Sh. Vivek Kumar @ Bhuvek in the matriculate Certificate is wrong and incorrect as alleged? OPP 3. Whether the order of resumption passed by LRO Chamba dt. 7.3.1993-94 and in consequent thereof mutation Nos. 1168, 1169, 1170 and 1171 attested on 16.1.1995 in favour of defendant No. 3 are wrong, and incorrect as alleged? OPP 4. Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP 5. Whether the suit is barred by principles of resjudicata as alleged? OPD 6. Whether the Civil Court has no jurisdiction to entertain and try this suit? OPD 7. Whether the plaintiff is estopped by his act and conduct as alleged? OPD 8. Relief. 4. The learned trial Court vide its impugned judgment and decree decided Issue No. 6 only in regard to the jurisdiction and did not give any findings on other issues and ordered the plaint to be returned to the plaintiff for presentation before the appropriate forum. 3 5. An appeal was preferred by the plaintiff under Section 104 C.P.C. read Section 21 of H.P. Courts Act and the District Judge vide its impugned judgment set aside the judgment passed by the learned trial Court and remanded the case to the learned trial Court for decision afresh on all the issues. 6. Being aggrieved by the said order passed by the learned first Appellate Court, the appellants/defendants had come up in appeal to this Court. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellants were that once the Court had held that it had no jurisdiction to hear the case, no findings were to be given on the merits of the case and, therefore, the impugned order of remand passed by the learned Appellate Court directing the learned trial Court to decide all the issues on merit is not sustainable in the eyes of law. 9. In support of his submission, learned counsel for the appellants had relied upon the decision in Jagraj Singh Vs. Birpal Kaur, (2007) 2 Supreme Court Cases 564, wherein the Court was considering the question in regard to the jurisdiction of the Court in a case under Hindu Marriage Act. It was held by their Lordships that once the Court had held that it had no territorial jurisdiction to entertain and decide that petition, the Court erred in dismissing the suit even on merits and that too without following the procedure under Section 23(2) of the Hindu Marriage Act. 10. My attention had been drawn by the learned counsel for the respondent to a Full Bench decision of this Court in Prithvi Raj Jhingta and another Vs. Gopal Singh and another, Latest HLJ 4 2006 (HP) (FB) 1179. In that case also, the Court had refrained from giving findings on all the issues and the question was referred to the Hon‘ble Full Bench, which considered the provisions of Order 14 Rule 2 and other provisions and it was concluded as under:- “….. where the Court has framed all issues together, both of the 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 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 take-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.” 11. In the present case also, the learned trial Court had not proceeded to treat Issue No. 6 as preliminary issue and gave an opportunity to the parties to lead evidence on merits also and the evidence was led on all the issues. However, while deciding the case, the Court disposed of the case only on the basis of the evidence recorded under Issue No. 6 in regard to the jurisdiction of the Court. The provisions of Order 14 Rule 2 C.P.C., which reads as under:- “Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the 5 provisions of sub-rule (2), pronounce judgment on all issues.” 12. It is, therefore, clear that the Court cannot treat the issue as preliminary and give findings separately on the question of jurisdiction and that question stands answered fully in the Full Bench decision of this Court and the said decision was again followed in a judgment of learned Single Judge in Puran Chand Vs. Pat Ram, Latest HLJ 2008 (HP) 417. Considering these two decisions, the findings recorded by the learned first Appellate Court remanding the case to the learned trial Court for decision on all the issues cannot be said to be incorrect and calls for no interference by this Court. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants and the same is dismissed accordingly. A copy of the judgment be sent to the learned trial Court for information and compliance. Record be returned to the Courts below. ( V.K. Ahuja ), July 07, 2010 Judge (BSS) 6