IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.272 of 2006 with FAO No.70 of 2007 Decided on: 22.11.2010 FAO No.272 of 2006 Sh.Ramesh Chand …..Appellant. VERSUS Hans Raj …..Respondent. FAO No.70 of 2007 Hans Raj. ….. Appellant VERSUS Ramesh Chand ….. Respondent _________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1Yes For the Appellant: Sh.Ajay Sharma, Advocate for the appellant in FAO No.272 of 2006 and for the respondent in FAO No.70 of 2007. For the Respondent: Mr.Dharamvir Sharma, Advocate, for the appellant in FAO No.70 of 2007 and for the respondent in FAO No.272 of 2006. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Deepak Gupta,Judge (Oral) These two appeals are being disposed of by this common judgment since they arise out of the same judgment delivered by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.106-J/XIII/2005 on 6.7.2006. 2. Briefly stated the facts of the case are that Sh.Hans Raj, plaintiff filed a suit against Paras Ram, predecessor-in-interest of Ramesh Chand. In this suit, it was alleged that he is owner in possession of ‘Gair Mumkin Abadi’ land (hereinafter referred to as the ‘suit land’). It was alleged that Hans Raj being the son of Mehro had inherited the suit land and that the defendant had never been in possession of the same. According to the plaintiff, on April 16, 2000, the defendant threatened to interfere in the suit property and, therefore, the plaintiff was compelled to file the suit. 3. The stand of the original defendant, Paras Ram was that the suit is bad for non-joinder of necessary parties. According to the defendant, the suit property was owned and possessed by …3… Rasilo who was father-in-law of the defendant and after the death of Rasilo, Smt.Leelawati, wife of the defendant (daughter of Rasilo) and their son, Ramesh Chand to whom Rasilo had willed away his property are the owners of the suit land. According to the defendant, he was also living alongwith his wife and son in the house of Rasilo as ‘Ghar Jawai’ even at the time when Rasilo was alive. We need not to go into the other aspects of the case. 4. The learned Trial Court framed the following issues:- 1. Whether the plaintiff is owner in possession of Gair Mumkin Abadi situated in Abadi- deh, as alleged? OPP 2. Whether the plaintiff is entitled for relief of permanent injunction, as prayed for? OPP 3. Whether the suit is bad for non joinder of the necessary parties, as alleged? OPD 4. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief. …4… 5. The learned Trial Court held that the plaintiff had failed to prove that he is exclusive owner in possession of the suit land and so, the suit was dismissed. The plaintiff filed an appeal before the learned District Judge and the learned District Judge came to the conclusion that certain issues which were necessary to decide the dispute between the parties and arise out of the pleadings of the parties had not been framed and, therefore, framed the following four additional issues:- 2-A. Whether the suit of the plaintiff is not legally maintainable, as alleged? OPD 2-B. Whether Rasilo, father in law of the defendant was residing in the suit land, if so, its effect? OPD 2-C. Whether Rasilo had executed a Will of his property, including the suit land or a part thereof, in favour of Ramesh Chand aforesaid, as alleged? OPD 2-D Whether Rasilo has executed a gift of his property, including the suit land or a part thereof, in favour of Smt.Leelawati, as alleged? OPD …5… 6. He thereafter, remanded the suit back to the learned Trial Court for fresh disposal in accordance with law. 7. In the appeal filed by the defendant, it is urged that there was no need to frame issues since the parties had gone to trial knowing fully well what are the disputes between them and it is further urged that even if these issues arose, the learned Lower Appellate Court should have either called for a report from the learned Trial Court on the issues or should have decided these issues itself. Learned counsel for the plaintiff alleges that his appeal should be allowed and there is no need to remand the matter back. 8. On going through the pleadings of the parties, I feel that some issues which arise out of the pleadings should have been framed. The issues framed by the learned Trial Court are very general in nature and not specific. The parties lead evidence on the basis of the issues framed and if proper issues are not framed, this may cause prejudice to the parties. Having held so, I do not understand what is the need for framing issue …6… No.2-B. Whether the defendant was residing with his father-in-law or not is immaterial because the defendant himself had not claimed any right in the property and only states that he is residing with his wife and children in the suit land. Therefore, the additional issues which are required to be framed are as follows:- 2-A. Whether the suit of the plaintiff is not legally maintainable, as alleged? OPD 2-B. Whether Rasilo had executed a Will in respect of a portion of his property in favour of Ramesh Chand, as alleged? 2-C. Whether Rasilo had executed a gift deed of a portion of his property in favour of Smt.Leelawati, as alleged? 9. This Court in a number of cases has held that though Order 41, Rule 23-A, CPC permits the Court to remand the case, however, before ordering wholesale remand of the case, the learned Lower Appellate Court must come to a …7… conclusion that retrial is necessary in the facts and circumstances of the case. 10. In my view, retrial is not called for in this case. The learned Lower Appellate Court could have followed the procedure prescribed in the rules. 11. Order 41 Rules 23, 23-A, 24 and 25 read as follows:- “23. Remand of case by Appellate Court Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 1[23A. Remand in other cases Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.] 24. Where evidence on record sufficient, Appellate Court may determine case finally Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after …8… resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor 1[within such time as may be fixed by the Appellate Court or extended by it from time to time.]” 12. Order 41 Rule 23, CPC applies only when the original suit has been disposed of on a preliminary point. If the Appellate Court reserves the decree, it can remand the case for decision on the other issues since the Trial Court has not given its finding on other issues. 13. In cases, where they are disposed of otherwise than on preliminary issues and the decree is reversed in appeal, the Appellate Court has the power to order wholesale remand under …9… Order 41, Rule 23, CPC. only in a case where it finds that a retrial is necessary. Therefore, the learned Lower Appellate Court must come to the conclusion that retrial is necessary. There is no such finding in the present case. 14. Order 41, Rule 24 deals with cases where even if the issues are re-settled, the Appellate Court can decide the suit on the basis of the evidence already led by the parties and it finds that there is no need to lead any further evidence. 15. Order 41 Rule 25 deals with the situations like in the present case where the Appellate Court feels that the learned Trial Court has failed to frame or try any issues or to determine such issues which had been raised before it. In such a case when the Appellate Court finds that it is essential to frame such fresh issue(s) then the Appellate Court has been given the power to frame such issue(s) and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct the Trial Court to record the additional evidence required and the Trial Court shall thereafter proceed to try these issues and …10… return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. It is obvious that the Appellate Court can either decide the issues itself or can call for a report of the Trial Court after recording evidence on the additional issues. The Appellate Court cannot just order remand of the case without coming to the conclusion that retrial is necessary. 16. This Court in Nagar Mal and another Vs. Bimal Kumar and another, Latest HLJ 2005 (1) HP 679 held as follows:- “From a perusal of the above, it would be clear that where the appellate Court feels that the trial Court had omitted to determine any question of fact and the appellate Court considers it essential for the right decision of the suit, the appellate Court may frame issues and refer the same for trial to the trial Court and shall direct such Court to take additional evidence and thereafter the trial Court shall proceed to try such issues and shall return the evidence to the appellate court together with its findings thereon and the reasons therefore. In the present case, the learned District Judge found that the question regarding validity of the will could not be gone into without framing a specific issue on the will and resultantly the learned District Judge set …11… aside the judgment and decree of the trial Court and remanded the case to the trial Court with a direction to frame issue regarding will and afford opportunity to the parties to lead their evidence. In my opinion, the procedure adopted by the learned District Judge is contrary to the provisions of Order 41 Rule 25 CPC referred to above.” 17. In Jabbar Singh Vs. Shanti Saroop, Latest HLJ 2007(1) Volume 17, Hp 192, this Court after discussing the entire law held as follows:- “This Court as well as the Apex Court in a large number of cases has deprecated the practice of wholesale remand of the case by an Appellate Court. The Appellate Court should not normally remand the case unless there is no alternative left to it. As is apparent from the various provisions of law mentioned above there are various options available to the Appellate Court. It can either call for the finding on a particular issue or it can even remand the case back to the trial court for fresh decision on a particular issue. The wholesale remand is only called for when all the issues are so inter-linked that decision on one issue would affect the decision of the other issue. Wholesale remand should be the last resort, which should be resorted to only when no other way out is possible. In Prem Kumar and others vs Parkash Chand and others 2002 (3) Shim. L C 358, a Division Bench of this Court set aside the order of wholesale remand and the first Appellate Court was directed to pass appropriate order by framing necessary issues and by issuing directions to the trial court.” …12… 18. In the present case, the issues framed are only whether the suit is not maintainable in the absence of certain parties and (2) whether Rasilo had bequeathed or gifted the properties to such persons who are not parties in the suit. Evidence on these issues can be recorded independently and, therefore, there is no need for wholesale remand of the case. The learned Lower Appellate Court should have in fact after framing the issues called for the said report of the learned Trial Court who should have recorded evidence on these additional issues and thereafter submitted its findings on the same to the Lower Appellate Court. 19. In view of the above discussion, both the appeals are disposed of by setting aside the order of the learned Lower Appellate Court in so far as it has directed retrial of the suit itself. The issues have now been recast and the learned Lower Appellate Court shall call for a report on the additional issues framed in terms of Order 41 Rule 25, CPC. The parties through their counsel are …13… directed to appear before the learned Lower Appellate Court on 4.1.2011. No order as to costs. November 22, 2010 ( Deepak Gupta ) (m) Judge.