IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 473 of 2009 Date of decision : 17.12.2009 Manoj Kumar and others …Appellants. Versus Smt. Rattani Devi …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr.H.K.Bhardwaj and Mr. Y.Paul, Advocate. For the respondent : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. Deepak Gupta, J. (oral) With the consent of the parties the appeal is being disposed of at the admission stage itself. Briefly stated the facts of the case are that the respondent (here-in-after referred to as the plaintiff) filed a suit against the appellants (here-in-after referred to as the defendants) praying that a decree for permanent injunction be passed restraining the defendants from causing any sort of interference in the suit land. It was claimed that the plaintiff is the owner in possession of the same. Written statement was filed and various objections were taken. Reference was made to certain previous litigations also. I do not think it is proper for me to delve in detail into the entire factual aspects in view of the manner in which I propose to dispose of the present appeal. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 It would be suffice to say that the learned trial Court framed the following nine issues:- 1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed? OPP. 2. Whether the plaintiff is entitled for the relief of possession? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the suit is hit by principle of resjudicata? OPD. 5. Whether the plaintiff is estopped from filing the present suit due to his own acts and conducts? OPD. 6. Whether the plaintiff has no locus-standi? OPD. 7. Whether the plaintiff has concealed the material facts? OPD. 8. Whether the suit is not within limitation? OPD. 9. Relief. The learned trial Court proceeded to discuss issues No. 1, 2 and 3 together. It however, gave finding only on issue No.3 and held that the suit is not maintainable. Thereafter the learned trial Judge did not give any findings on issues No.1,2, 4 to 8 on the ground that in view of the decision rendered on issue No.3 the said issues had become redundant. Issue no. 9 relates to relief only and the suit of the plaintiff was dismissed. The plaintiff filed an appeal and the learned lower appellate Court held that the judgement of the trial Court was not in conformity with the Order XIV Rule 2 and Order XX Rule 5 CPC, since findings on all issues were not given. He accordingly set-aside the entire judgement and remanded the case to the Civil Judge (Junior Division) Court No.2, Una for decision afresh. Aggrieved by this judgement and decree the defendants have filed the present appeal. The main contention raised on 3 behalf of the appellants is that since the suit itself was not maintainable, the learned trial Court rightly decided not to give findings on other issues. In the alternative, it is contended that even if findings were required on other issues the matter should have been remitted to the learned trial Court only for giving findings and the finding given on issue No.3 should not have been set-aside. I have heard Shri H.K.Bhardwaj, learned counsel for the appellants and Shri Bhupender Gupta, learned senior counsel for the respondent. Order XIV Rule 2(1) of the Code of Civil Procedure casts a duty upon the Court to pronounce judgement on all issues. Sub Rule 2 of Rule 2 carves an exception to this rule and where the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law, it may proceed to try that issue and if it is of the opinion that such a preliminary issue on which the suit itself can be disposed of on a question of law arises it should normally refrain from framing issues on merits and only frame and try the preliminary issues. This matter is no longer res integra. A Full Bench of this Court in Prithvi Raj Jhingta and another vs. Gopal Singh and another, Latest HLJ 2006 (HP) (FB) 1179, held as follows:- “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 4 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 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.” A similar question came up for consideration in Puran Chand vs. Pat Ram vs. Pat Ram, 2008(1) Cur. L.J (H.P.) 473, wherein the then Hon’ble the Chief Justice has made the following pertinent observations:- “The grave error which has been committed by the learned trial Court based on non-appreciation of the Full Bench judgment is that once it framed all the Issues, of facts as well as law by its order dated 16th May, 2006, by exercising its jurisdiction under Order 14 Rule 2(1), it had to try all the Issues together and pronounce judgment on all the Issues which also is the clear mandate of sub Rule (1) of Rule 2 of Order 14 CPC. Jurisdiction to try issues of law only can be exercised only in terms of sub-Rule (2) of Rule 2 of Order 14 and that can be done only at the stage of the framing of Issues immediately after the filing of the pleadings by the parties. Full Bench judgment has clearly held that where the Court is of the opinion that the case or 5 any part thereof can be disposed of on a issue of law only, it may frame Issues of law only and try them if those Issues relate to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Actually sub-Rule (2) goes as far as to lay down that if the Issues of law are framed while exercising jurisdiction under this sub- Rule, the Court has to postpone the settlement of other Issues until after Issues of law have been determined. Since in the present case the Court had not exercised jurisdiction under sub-Rule (2) and had chosen to exercise jurisdiction under sub-Rule (1), whether upon an application filed by the defendant or otherwise the Court had no jurisdiction at all to order that Issues No.11 and 12 should be treated as preliminary Issues even if, in the opinion of the Court the suit could be disposed of on these two Issues. That stage was over. It was wholly impermissible.” In fact, I have taken an identical view in CMPMO Nos. 235 and 236 of 2007 decided on 11th April, 2008. Therefore, in view of the aforesaid law the learned lower Appellate Court was absolutely right in holding that the trial Judge was required to give findings on all the issues and merely because the trial Court held that the suit was not maintainable did not authorise not to give findings on other issues on the ground that they had become redundant. The mandate of law under Order XIV as interpreted by this Court in numerous judgements is that once issues are framed and tried then findings on all issues must be given. Having said so, a finding given by a trial Court cannot be set-aside by an Appellate Court without giving reasons. A finding, right or wrong, was given by the trial Court on issue No.3. I am refraining from commenting whether issue was properly decided on or not since I propose to send back the matter. Be that as it may, 6 the learned lower Appellate Court also erred in setting aside the entire judgement, which includes the finding even on issue No.3 only on the ground that the learned trial Court had not given its finding on all the issues. The best course for the learned lower Appellate Court was to have remitted the matter back to the learned trial Court and asked the learned trial Judge to submit its findings on all the remaining issues i.e. issue No. 1, 2, 4 to 8 and thereafter decide issue No.9 afresh. The appeal filed by the plaintiff should have been kept pending and a right reserved to the parties to file fresh objections to the findings given by the trial Court. In view of the above discussion, I partly set-aside the order of the learned lower Appellate Court and instead of wholesale remand direct that the learned lower Appellate Court shall remit the matter to the learned trial Court who shall then give its findings on all the remaining issues and send these findings to the learned lower Appellate Court. Parties within 30 days of the receipt of the copy of the findings shall have a right to file objections to the findings given by the trial Court in accordance with Order 41 Rule 26 of the Code of Civil Procedure and thereafter the lower Appellate Court shall proceed to hear and decide the appeal. The parties are directed to appear before the learned lower Appellate Court on 18th January, 2010. The learned lower Appellate Court shall thereafter proceed to pass any order in line of the judgement delivered by this Court today and give a direction to the parties to appear before the learned trial Court. The trial Court shall within two months of the date it receives the order proceed to 7 give its findings on all the issues after hearing the parties. Short time is given since the parties are not required to lead any further evidence. The trial Court shall then submit its finding to the learned lower Appellate Court who shall then proceed to decide the appeal. The appeal is disposed of in the aforesaid terms. No costs. Dasti copy. 17th December, 2009 ( Deepak Gupta ) ™ Judge.