IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Review No. 20 of 2002. Date of decision: 17th March, 2008. Sandhya Devi and others. ….. Petitioners Versus Surinder Paul and others. … Respondents Coram : The Hon’ble Mr. Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the petitioners: Mr. Rajnish K. Lal, Advocate, vice Mr. K.D. Sood, Advocate. For the respondents: Mr. Suneet Goel, Advocate, for respondents No.1, 2 and 10 to 12. Ms. Lalita Verma, Advocate, vice Mr. Ramakant Sharma, Advocate for respondents No.5 and 7 to 9. Jagdish Bhalla, C.J. (Oral): A very short point is involved for consideration in this Review petition filed by the two defendants against the judgment dated 21.8.2002 passed by the Division Bench of this Court comprising of Kamlesh Sharma and K.C. Sood, JJ (as they then were) passed in FAO No. 567/2000. The learned Additional District Judge, Solan vide his judgment dated 27.9.2000 which was under challenge in the aforesaid FAO No. 567/2000, by 1Whether reporters of Local Papers may be allowed to see the judgment? - 2 - setting aside the judgment of the learned trial Court had framed two additional issues, being issues No. 8A and 8B and remanded the case to the learned trial Court as a whole for retrial. Additional Issues No. 8A and 8B as framed by the learned Additional District Judge read thus:- “8 A. Whether the sale deed No. 206 dated 16.3.1992, 862 dated 9.9.1992, 51 dated 19.1.1993,173 dated 23.2.1993, 159 dated 8.2.1993 executed after 6.2.1992 by deceased Nand Lal for legal necessity and good management of the property as alleged? OPD 8B. Whether the suit property was self acquired property of deceased Nand Lal as alleged? If so, its effect? OPD-3.” Dissatisfied with the judgment dated 27.9.2000 passed by the learned Additional District Judge, with respect to the wholesale remand of the matter to the learned trial Judge in the light of the framing of the aforesaid two additional issues, the plaintiffs filed FAO No. 567/2000 which, as noticed at the outset was disposed by the Division Bench on 21.8.2002. The Division Bench did not agree with the view taken by the learned Additional District Judge with respect to the framing of either issue No. 8A or Issue No. 8B since it found itself of the opinion that there was no need to frame any of these two issues. As far as issue No. 8B is concerned, the Division Bench was of the opinion that it already stood covered by the original issue No.1 which read thus: “1. Whether the suit property is ancestral coparcenary and joint Hindu family property? OPP” - 3 - The parties in this review petition are not at variance about this aspect of the matter and they do concede that the Division Bench was wholly correct in adopting this view as far as the framing of additional issue No. 8B is concerned because undoubtedly, there was no need to frame this additional issue since it was already covered by the original issue No.1. In so far as the framing of additional issue No. 8A is concerned, the ground taken by the Division Bench in discarding and rejecting the view of the learned Additional District Judge about the framing of additional issue No. 8A is concerned, was that the defendant Nand Lal had not pleaded in the written statement that the sale deeds in question were executed by him for legal necessity and for the good management of the property as had been alleged. The Division Bench in the course of the judgment under review observed that Nand Lal, defendant had not pleaded that he had sold the property for legal necessity and for good management. The following observations extracted from the Division Bench judgment under Review are apposite and read thus: “It is true that Nand Lal had said that the alienations made by him were legal and valid and for legal necessity for the benefit of the estate in subsequent lines but that was in the context that the plaintiff had no right to challenge those alienations as the land was neither ancestral nor joint Hindu family and coparcenary property.” - 4 - Mr. K.D. Sood has taken us through para-6 of the written statement, which reads thus: “6. ……………. The all sales as mentioned from Sl. No. 1 to 11 under sub para (a) of Para No.6 of the plaint are legal and valid and the same are for legal necessity and for the benefit of estate of defendant No.1, and the plaintiffs had and have no right whatsoever to challenge the same on any count. The land so sold by the defendant No.1 was neither ancestral not joint Hindu Family and coparcenary property, in fact the same was self acquired property of the defendant No. 1.” Undoubtedly, there is an error apparent on the face of the record. In para-6 of the written statement defendant Nand Lal had clearly pleaded that all sales as mentioned from serial numbers 1 to 11 under sub para (a) of para-6 of the plaint were for legal necessity and for the benefit of the estate of the said defendant. In the light of this clear and unambiguous pleading by defendant Nand Lal, it could not be said that he had pleaded this aspect by qualifying it in the context of the property being self acquired. Actually, the fact of the property being self acquired had been pleaded in para-7 of the preliminary objections and in para-2 of the reply on merits wherein defendant Nand Lal had clearly also pleaded that the property forming the subject matter of the suit was not ancestral property and that it was a self acquired property. The plea with respect to the property being self acquired was independent of the plea relating to the sale of the property for legal necessity and for the benefit of the estate of the - 5 - defendant. The view taken by the learned Additional District Judge, therefore, in framing additional issue No. 8A was correct and the view taken by the Division Bench of this Court was apparently erroneous, being contrary to the record of the case. Therefore, there is no doubt in our minds that an error apparent on the face of the record had crept in the judgment of Division Bench resulting in miscarriage of justice. Because of the framing of additional issue No. 8A and because of the fact that the parties had not led evidence with respect to this additional issue, the matter did require being remanded to the learned trial Court for taking evidence. Of course, it was not a case for wholesale remand but of a limited remand in terms of Rule 25 of Order 41 C.P.C., limited to the trial Court recording evidence/additional evidence with respect to the additional issue No. 8A only and thereafter, return the evidence so recorded together with its findings thereupon and the reasons therefor to the appellate Court for its consideration. For the aforesaid reasons, this review petition is partly allowed only in so far as it relates to the framing of additional issue No. 8A is concerned and on this limited ground the case is remanded to the trial Court. To that extent only the judgment of the Division Bench dated 21.8.2002 passed in FAO No. 567/2000 is reviewed. The following order accordingly is passed: (i) By setting aside the judgment of the trial Court, the order framing additional issue No. 8A as passed by the learned Additional District Judge is affirmed; - 6 - (ii) the suit is remanded to the learned trial Court in terms of Order 41 Rule 25 C.P.C. with directions to it to take evidence only insofar as it relates to the additional issue No. 8A and return the evidence so taken together with its findings only on issue No. 8A to the learned Additional District Judge, Solan; (iii) the learned trial Court shall complete the aforesaid exercise very very expeditiously and make an earnest endeavour to return the case to the learned Additional District Judge, Solan, within six months and ; (iv) the learned Additional District Judge shall dispose of the appeal thereafter within four months. The parties through their learned counsel are directed to appear before the learned Civil Judge (Senior Division), Nalagarh on 28th April, 2008. The learned trial Judge shall ensure that very very short dates of hearing are fixed in the suit to enable it to complete the aforesaid exercise within six months. CMP No. 53 of 2003: In view of the orders passed in the Review Petition, this application is disposed of and interim order dated 16.7.2003 shall stand vacated. ( Jagdish Bhalla ) Chief Justice ( V.K. Ahuja ) March 17, 2008 Judge (tr) - 7 -