SAO No. 2 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No. 2 of 2009 Date of decision : September 10, 2009 Gurdeep Singh Appellant Versus Ajit Singh and others Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. B.R. Mahajan, Advocate for the appellant Mr. O.P. Nagpal, Advocate and Mr. Jatinder Nagpal, Advocate for respondents No. 2 to 8 NIRMALJIT KAUR, J. (ORAL) This is an appeal against order dated 19.9.2008 vide which the appeal was remanded back to the concerned lower Court. Although, the judgment and decree dated 10.9.1998 was not set aside, direction was issued to give sufficient opportunities to the parties for leading evidence on the additional issues and to decide the case afresh in accordance with law. The facts in brief are that the plaintiff/appellant filed suit for specific performance. While filing the said suit, one Ajit Singh s/o Ishar Singh and Amar Singh s/o S. Sohan Singh were impleaded as respondents. The suit filed by the plaintiff/appellant was decreed by the Court of Additional Civil Judge (Sr. Divn.) Ajnala vide judgment and decree dated 10.9.1998. Defendant No. 1 - Ajit Singh filed an appeal against judgment and decree dated 10.9.1998. However, Amar Singh did not file any appeal. Subsequently, Amar Singh predecessor of respondents No. 2 to 8 filed an application under Order 1 Rule 10 CPC which was allowed by SAO No. 2 of 2009 2 the Additional District Judge, Amritsar vide order dated 20.10.2000. Meanwhile, Amar Singh died and respondents No. 2 to 8 were impleaded as his legal representatives. The Addl. District Judge framed additional issues No. 5-A, 5-B and 5-C. These issues read as follows:- 5-A) Whether Amar Singh deceased through his LRs has become owner by way of adverse possession in the suit property as alleged, if so, what effect? OPD (Defendant No. 2) 5-B) Whether plaintiff Gurdip Singh has filed the present suit in collusion with defendant Ajit Singh on the basis of alleged agreement which is void in itself as alleged? OPD (Defendant No. 2) 5-C) Whether defendant No. 1 Ajit Singh is not the owner of the suit property as alleged? (Defendant No. 2) While framing the issues, although the decree was not set aside, the matter was remanded back to the trial Court to record the evidence on additional issues and decide the case afresh in accordance with law. Aggrieved with the said order, the same is challenged before this Court with a limited prayer. It was submitted by learned counsel for the appellant that while framing the issues, judgment and decree dated 10.9.1998 was rightly not set aside. However, the direction to decide the suit afresh was contrary to the provisions of Order 41 Rule 25 CPC. Under Order 41 Rule 25 CPC, the Appellate Court can frame the issues which the trial Court had omitted to frame but all that it was required to do while doing so was to direct the trial Court to record the evidence on these issues and after doing so, submit the report together with its findings back to the Appellate Court for adjudication by the Appellate Court in appeal. It was SAO No. 2 of 2009 3 further stated that the Appellate Court, therefore, erred in directing the case to be decided afresh. Learned counsel for the respondents does not dispute the legal proposition of law but submitted that in view of the fresh issues having been framed, the entire case should be heard afresh even on the earlier issues as they all were inter-connected. Learned counsel for the parties have been heard. In order to resolve the controversy in dispute it would be appropriate to peruse Order 41 Rule 25 CPC which reads as under:- “ORDER XLI – APPEAL FROM ORIGINAL DECREES 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 therefore (within such time as may be fixed by the Appellate court or extended by it from time to time). A perusal of the same makes it clear that the Appellate Court in the circumstances as in the present case is to call for report from trial Court on the issues after recording evidence and not to remand the case SAO No. 2 of 2009 4 for fresh decision. The propositions of law also finds similar view held by this Court in the case of Karna vs. Parkash Chand, AIR 1985 (P&H) 341 as well as in another case titled as Darshan Lal vs. Kamrade Daya Singh, AIR 1990 (P&H) 93. While deciding the issue, this Court in the case of Karna (supra) held as under :- “If from the pleadings of the parties a material issue arises, which is not framed in the trial Court and the Appellate Court feels that the said issue was necessary, then the proper course to be adopted would be to resort to Order 41 Rule 25 of the C.P.C. and not to remand the case under Rule 23-A of the Code after setting aside the judgment and decree of the trial Court. This is the firm settled rule. Reference be made to Dr. Kishan Singh vs. Bachan Singh, AIR 1942 Lahore 201 (Column 2 top at page 203). The aforesaid celebrated judgment has throughout been followed by this Court. Reference may also be made to Sheo Datt vs. Mst. Sarbati (1970) 72 Pun LR 702 and to some judgments rendered by me. To this extent the order of the lower Appellate Court is erroneous and deserves to be set aside.” The law laid down as above is duly applicable in the facts of the present case. Keeping in mind the discussions above as well as the provisions of Order 41 Rule 25 CPC, the appeal is partly allowed with modification to the extent that the trial Court shall proceed to record additional evidence on the issues framed by the Appellate Court and return the same to the Appellate Court alongwith its report. The Appellate Court, thereafter, shall proceed to decide the appeal on merits after taking into SAO No. 2 of 2009 5 consideration the entire evidence and the report submitted by the trial Court on the additional issues. The order dated 19.9.2008 is, accordingly, modified to the above extent. The parties are directed to appear before the trial Court on 12.10.2009 before Additional Civil Judge (S.D.), Ajnala. (Nirmaljit Kaur) 10.09.2009 Judge reena