IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH S.A.O. No. 24 of 2009 (O/M). Date of Decision : June 07, 2009. Sadhu Ram resident of Village Bhagana, Tehsil and District Hisar, and others . ...... Appellants. Versus. Gobind, L.R. of late Smt. Sunheri widow of Bholar adopted son of Khumba s/o Chet Ram, resident of Village Bhagana, Tehsil and District Hisar, and others. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Vivek Khatri, Advocate, for the appellants. AUGUSTINE GEORGE MASIH, J. The present appeal has been filed by the appellants/defendants, challenging the judgment dated 18.05.2009, passed by the Additional District Judge, Hisar, vide which the lower appellate court has set aside the judgment and decree dated 03.12.2008, passed by Additional Civil Judge (Senior Division), Hisar, and remanded the case to the trial court with a direction to decide the suit afresh after framing proper issues and giving reasonable opportunities to the parties to lead evidence. Briefly the facts of the case are that a suit was filed by plaintiff Smt. Sunheri against relatives/General Public and one Shri Harkesh. Defendant No. 1 was proceeded against ex-parte and defendant No. 2 admitted the claim of the plaintiff in toto in the written statement filed by him. Issues were framed and evidence was led by the plaintiff. Before the suit could finally be decided, plaintiff Smt. Sunheri died. Thereafter, the appellant and some other defendants moved applications under Order 1 Rule S.A.O. No. 24 of 2009. 10 C.P.C for being impleaded as party defendants and the said applications were allowed by the trial court, vide order dated 07.03.2003 and 23.08.2004. Defendants No. 2, 8, and 12 were proceeded against ex-parte. Written statement was filed by defendants No. 3 to 5, taking various grounds therein. Without re-framing the issues afresh and thereby considering the rival averments of the parties and then to allow the parties to lead their evidence to discharge their onus, the trial court proceeded to decide the suit. The said suit was allowed in favour of the plaintiff, leading to filing of the appeal by the appellants/defendants, which appeal resulted in setting aside the judgment and decree impugned with the order of remand of case for re-trial. The ground taken by the appellants/defendants in the present appeal is that the Court should not have remanded the case to the trial court for a fresh decision, instead it should have on the basis of the evidence on record proceeded to decide the same on merits. The stand of the parties are known to each other after filing of the written statement by the added defendants and despite various opportunities having been given to the plaintiffs, they had not produced any evidence, which cannot now be allowed to be produced before the trial court, leading to the filling up of lacuna. It is on this ground that counsel for the appellants has made his submission, challenging the order of remand. He states that the scope and jurisdiction of the lower appellate court is limited and the lower appellate court cannot remand the case for recording further findings on an issue, if pleading and evidence are available on records. It should have itself proceeded to decide the case on merit instead of remanding the same. He, therefore, relies upon the judgments of Hon'ble the Supreme Court in the case of Hameed (D) By Lrs. and Ors. Versus Kummottummal -2- S.A.O. No. 24 of 2009. Kunhi P.P. Amma (D) by Lrs., 2006 (3) R.C.R. (Civil) 744 and P. Purushottam Reddy Versus M/s Partap Steels Ltd, 2002 (2) R.C.R. (Civil), 70. He further relies upon the judgments of this Court in the case of Ved Parkash and others Versus Bhagirath Parshad and others, 2007 (1) R.C.R. (Civi), 521, and Hasham and others Versus Jhangi Ram, 2005 (1) R.C.R. (Civil), 536. I have heard counsel for the appellants and have gone through the impugned judgment as well as the judgment and decree of the trial court. The contention of the appellants/defendants before the lower appellate court was that the judgment and decree of the trial court was not sustainable as the trial court had critically erred in not re-framing the issues after the appellants/defendants became the party to the suit and filed written statement, which has caused prejudice to the appellants/defendants. The stand taken by the appellants/defendants in the written statement has not been taken into consideration and due to non-framing of the proper issues after filing of the written statement, the appellants/defendants have been prejudiced. It has been stated by them in their written statement that as plaintiff Sunheri died during the pendency of the suit, the suit shall stand abated as no proper legal representatives were impleaded for the reason that Gobind has not been proved to be the adopted son of the plaintiff. The ground that the suit, which had been preferred by the plaintiff, did not seek the possession over the suit property and the suit was merely a suit for declaration and, thus, would not be maintainable. It was further the stand of the appellants/defendants that the suit was time barred and the revenue entries, which have been challenged in the suit, was 20 -3- S.A.O. No. 24 of 2009. years old. The forged and false documents were prepared by defendant Harkesh with a sole object to grab the land as Gobind was his son. This being the stand of the appellants/defendants before the lower appellate court, the lower appellate court on consideration of the same and on the basis of the grounds taken in the appeal and the submissions made by counsel for the appellants, has accepted the said contentions and proceeded to decide the appeal on consideration of the arguments raised before it by the parties. The lower appellate court has considered the case in the totality of the matter in dispute and on the basis of the pleadings and the evidence led by the parties, have rightly come to a conclusion that the issues were required to be re-framed after arraying of the appellants/defendants as party to the suit. This was necessitated because of the fact that the issues framed prior to the appellants/defendants being impleaded as party did not take into consideration the pleadings of the newly added defendants, who asserted the pleadings of the plaintiff/respondent and claim their right of ownership and possession in the suit property on the basis of revenue records and have also disputed the relationship. All these require for framing of issues, so that the parties could lead their respective evidence to prove their respective contentions. The proceedings, therefore, before the trial court without framing of proper issues, cannot be said to be correct and has, thus, led to rightly setting aside the judgment and decree of the trial court by the lower appellate court vide its impugned judgment. The judgments, which have been relied upon by counsel for the appellants, would not help the case of the appellants/defendants for the simple reason that the precise grouse, which the appellants have made before the lower appellate court, has been take care of by the lower appellate court -4- S.A.O. No. 24 of 2009. and have been rightly accepted. Apart from this, it would be just, equitable and proper in the present case that the issues be re-framed in the light of the pleadings of the parties so that each of the parties are aware of the issues, which require to be adjudicated upon and would also conform to the principles of natural justice. The exercise of powers by the lower appellate Court in remanding the case to the trial court with a direction to decide the suit afresh after framing proper issues and giving reasonable opportunities to the parties to lead the evidence, is fully justified and within the powers conferred on the Court, as per the provisions of Code of Civil Procedure. Finding no merit in the present appeal, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE June 07, 2009. sjks. -5-