R.S.A.No.658 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.658 of 2005 Date of Decision : 10.09.2009 Sukhdev Singh ...Appellant Versus Sukhwinder Kaur and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Akshya Jain, Advocate, for the appellant. Mr. Arun Palli, Sr. Advocate, with Mr. Sunil Garg, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) This order shall dispose of RSA No.658 of 2005 preferred against the judgment and decree passed by the learned first Appellate Court on 29.10.2004 and the reference made by the learned Addl. District & Sessions Judge, Mansa on 7.4.2006 consequent to an order passed by this Court on 10.2.2005 in RSA No.1758 of 2003. Before adverting to the respective contentions, some background leading of the present appeal need to be noticed. The plaintiff-appellant filed a suit for possession claiming land measuring 48 Kanals 19 Marlas and 141 Kanals 1 Marlas of Amar Singh, who died on 5.3.1987. The said suit was decreed by the learned trial Court on 16.2.1999. The defendants filed an application for amendment of the written-statement in appeal, so as to propound a Will allegedly executed by Amar Singh in favour of the defendants. After allowing the R.S.A.No.658 of 2005 2 amendment, the learned first Appellate Court framed additional issues on 18.12.2002. The learned first Appellate Court remanded the suit to the trial Court to record evidence on the additional issues framed and while setting aside the findings on the issues already framed by the learned trial Court. The first Appellate Court also passed a decree in pursuance of the aforesaid order dated 18.12.2002. The said judgment and decree dated 19.12.2003 was challenged by the plaintiff before this Court in RSA No.1758 of 2003. This Court set aside the judgment and decree passed by the learned first Appellate Court on 18.12.2002. It was noticed that after the order dated 18.12.2002, the learned trial Court has decided the suit on 19.12.2003. It was ordered that the finding recorded by the trial Court on additional issues 2-A and 2-B framed by the learned first Appellate Court shall be treated as the report and the learned first Appellate Court shall decide the appeal while considering such report given by the learned trial Court. The operative part of the order of this Court reads as under : “Learned counsel for the respondents has pointed out that in terms of the order passed by the learned first Appellate Court, the learned trial Court has decided the suit afresh vide judgment and decree dated 19.12.2003. Keeping in view the said fact, it is ordered that the judgment and decree passed by the learned trial Court on 19.12.2003 is clearly not sustainable as the findings recorded by the learned trial Court earlier were set aside. In stead, it is ordered that the judgment and decree dated 19.12.2003 shall be treated as a report in respect of additional issues 2-A and 2-B framed by the learned first Appellate Court. R.S.A.No.658 of 2005 3 The learned first Appellate Court shall decide the appeal on the basis of judgment and decree passed by the learned trial Court on 16.2.1999 and keeping in view the report dated 19.12.2003 on additional issues in accordance with law. The parties through their counsel are directed to appear before the learned Additional District Judge, Mansa on 14.3.2005 for further proceedings in accordance with law.” As a matter of fact, not only suit was decided on 19.12.2003 but even the first appeal was decided by the learned first Appellate Court on 29.10.2004, whereby the suit for possession was dismissed. The plaintiff filed the present appeal against the said judgment and decree on 31.1.2005 and in the grounds of appeal, it was mentioned that RSA No.1758 of 2003 against the order passed by the learned first Appellate Court on 18.12.2002 is pending. After the orders were passed by this Court on 10.2.2005, the learned first Appellate Court faced dilemma how to deal with the matter and, thus made a reference before this Court. The appellant has also filed C.M.No.3357-C of 2009 placing on record the interim orders passed by the learned first Appellate Court and also the references made by the learned first Appellate Court on 7.4.2006 and 2.7.2007. The matter has been placed before me in view of the earlier order passed by me on 10.2.2005. I have heard learned counsel for the parties on the following substantial question of law : “Whether the judgment and decree dated 29.10.2004 passed by the learned first Appellate Court can be sustained in law in view R.S.A.No.658 of 2005 4 of the order passed by this Court on 10.2.2005?” Learned counsel for the appellant has argued that the order passed by this Court on 10.2.2005 has been accepted by the parties, wherein the decision of the learned trial Court dated 19.12.2003 consequent to the earlier order passed by the learned first Appellate Court on 18.10.2002 has been noticed. The said decision of the trial Court was ordered to be treated as report to enable the learned first Appellate Court to decide the appeal on merits. Therefore, the judgment and decree dated 29.10.2004 has to be set aside to give effect to the order passed by this Court on 10.2.2005. That is the only way to regularize the proceedings arising out of a suit for possession filed by the plaintiff. Though learned counsel for the respondents has vehemently argued that the plaintiff is estopped to dispute the judgment and decree dated 29.10.2004 having failed to bring to the learned first Appellate Court, the pendency of RSA No.1758 of 2003. But the fact remains that such judgment and decree arises out of proceedings, which were found to be vitiated. Therefore, such judgment and decree dated 29.10.2004 cannot be permitted to stand so as to decide the lis between the parties in accordance with law. Consequently the judgment and decree dated 29.10.2004 is set aside. The references by the learned Addl. District & Sessions Judge, Mansa are also accepted. The matter is remitted back to the learned District Judge, Mansa, to decide the appeal on merits in accordance with law after considering the deemed report dated 19.12.2003 on the additional issues framed. R.S.A.No.658 of 2005 5 Parties through their counsel are directed to appear before the learned District Judge, Mansa on 26.10.2009 for further proceedings in accordance with law. The learned first Appellate Court shall make attempt to decide the appeal expeditiously, preferably within a period of 6 months. 10.09.2009 (HEMANT GUPTA) Vimal JUDGE