IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (Ord.) No.112 of 2006 Date of decision: 22.11.2010. Narayan Parkash Bharti …Appellant -Versus- Mata Chintpurni Trust and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Mr.B.B. Vaid, Advocate. Deepak Gupta, J. (oral) 1. This appeal by the plaintiff is directed against the order dated 5.4.2006 passed by the learned Additional District Judge, Una in Civil Appeal No.86 of 2005 whereby he allowed the application under Order 41 Rule 27 filed by the defendants, set-aside the judgment and decree of the learned trial Court dated 30.8.2005 and remanded the case back to the learned trial Court. 2. At the outset, I may observe that a preliminary objection has been raised that a Regular Second Appeal would lie against the impugned judgment and decree. Sh.B.B. Vaid, learned counsel for the respondents/defendants has urged that the learned lower appellant Court has also drawn up a decree sheet and since a decree has been drawn, an appeal would lie in this Court. 3. I am of the considered view that the order of the learned lower appellate Court ordering the drawing up of a decree sheet is totally incorrect and untenable since he was ordering 2 wholesale remand of the case. When the lower appellate Court is ordering the wholesale remand there is no need for drawing up a decree as it is not deciding the rights of the parties. As such this preliminary objection is rejected. 4. Briefly stated the facts of the case are that the plaintiff filed a suit alleging therein that the suit property which is a Sarai (Inn), bath rooms and water pond (Talab) are in possession of the Juna Akhara of which the plaintiff is a devotee and Sadhu. He prayed that the defendant, Mata Chintpurni Trust and its officials be restrained by a decree of permanent injunction from demolishing the Inn, Bath Rooms and from raising any commercial complex by demolishing and changing the user of the Inn, Bath Room and water pond situated on the suit land. 5. The stand of the defendants is that the plaintiff had no locus standi to file the suit and that it is the Trust which is looking after the land, spending money on its upkeep. According to the defendants the entry showing the plaintiff to be in possession of the suit land is wrong and incorrect. The defendants also allege that lakhs of devotees who visit the Mata Chintpurni Temple, , after paying obeisance at the temple, take bath in the Talab (pond) which is part of the suit land and that the said pond and surrounding area is managed by the Trust for the benefit of the general public. It was also alleged that the defendants have approved a plan to beautify and renovate the Inn for the benefit of the general public. According to the defendants they were not in any manner demolishing the pond. 6. The learned trial Court framed the following issues: 3 “1.Whether the plaintiff is entitled for the relief of injunction as prayed for? …OPP 2.Whether the plaintiff has no cause of action, as alleged? …OPD 3.Whether the plaintiff has no locus standi? …OPD 4.Whether the plaintiff is estopped by his act and conduct?...OPD 5.Whether the suit is bad for non-compliance of provision of Sec.80(1) CPC, as alleged? ..OPD 6.Relief.” 7. The parties led evidence and the learned trial Court decreed the suit in favour of the plaintiff. The defendants filed an appeal. In the appellate Court an application for leading additional evidence under Order 41 Rule 27 CPC was also filed whereby the defendant-Trust wanted to place on record the material to show that it had spent money on the maintenance and upkeep of the suit property and it also wanted to produce the revenue record to show that prior to the entry being made in favour of Chintpurni Bharti a disciple of the plaintiff, the suit land was never shown in the possession of Juna Akhara, the plaintiff or his disciple. This application was allowed and the learned lower Appellate Court came to the conclusion that since this application has been allowed the parties should be permitted to lead other evidence also and it gave two opportunities to each of the parties on the issues already framed by the learned trial Court and directed that the case be disposed of within six months. 8. The learned lower Appellate Court also made certain observations in para 17 of the judgment and directed that a copy of the judgment be sent to the Secretary (Revenue) to the Government of Himachal Pradesh for taking necessary action. This judgment is under challenge in this appeal. 4 9. As far as the observations made in para 17 are concerned, in my view, these observations were totally uncalled for. Once, the learned lower Appellate Court was remanding the case to the trial Court it should not have made any observations which could have influenced the learned trial Court. An appellate Court should always remember that the trial Court is subordinate to it and even stray observations made by the Appellate Court Judge could influence the trial Court Judge. In my view, these observations should not have been made and, as such, the observations made in para 17 are struck off. 10. Having held so, I am of the opinion that since the property in question is admittedly property meant for the use of the devotees of Mata Chintpurni Trust, according to all the parties, the interest of justice demands that this property be maintained in a proper manner so that the devotees of the temple can enjoy this property and are put to least inconvenience. I am in agreement with the learned lower Appellate Court that even if the defendants were remiss in placing certain documents or evidence on record before the trial Court keeping in view the fact that the property is indisputably property dedicated for the use of the public, the Court to arrive at a just decision was required to look into all aspects of the matter. Therefore, I uphold this part of the order allowing the appellant to lead additional evidence. 11. The next question which arises for consideration is whether this is a case where there should be re-trial or whether the learned lower Appellate Court itself should have recorded the evidence or called for a finding from the trial Court. The issues have already been quoted above. The issues are quite general in nature. No 5 doubt the parties are aware of what the dispute is but since the matter has not been decided, I feel that if the following issues are framed it would help in deciding the matter in a much better manner: 3-A) Whether the Juna Akhara is in possession of the suit property and if so in what capacity? ….OPP. 3-B)If issue No.3, is not proved whether the possession is that of the defendant No.1 Trust? …..OPD 3-C)Whether the Mata Chintpurni Trust has till the filing of the suit been maintaining the suit property? 3-D)Whether the defendant has the right to change the use and nature of the suit property by putting it to commercial use? …OPD 3-E)Whether the defendant has a right to beautify and renovate the Pond and maintain the property in a proper manner?” 12. In view of the framing of these addition issues, I am of the considered view that the re-trial of the case is necessary. Since, additional issues have been framed both the parties shall be given three opportunities each to lead the evidence. Since re-trial has been ordered the parties shall be entitled to lead evidence even on the issues already framed so that an end can be put to this long standing dispute. Keeping in view the fact that the nature of the property is one dedicated to public and already the suit has been pending for a long time the learned trial Court is directed to dispose of the suit at the earliest and in any event not later than 31st October, 2011. Parties through their counsel are directed to appear before the learned trial court on 28th December, 2010. The 6 Registry is directed to ensure that the record of the case are sent to the trial Court well in advance so as to reach the said Court on or before 28th December, 2010. 13. The appeal is disposed of in the aforesaid terms. No order as to costs. November 22, 2010 ( Deepak Gupta ), PV Judge