IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (Ord.) 262 of 2008. Judgment Reserved on 12.3.2009. Date of decision 16.3.2009. Shri Krishan Chand ….Appellant/plaintiff. Versus Smt. Chander Kanta & others ….Respondents/Defendants. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Shri B.M.Chauhan, Advocate. For respondents 1 to 4 Shri Suneet Goel, Advocate. Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment of the learned District Judge remanding the case to the trial Court for decision afresh. The plaintiff had instituted a suit for permanent prohibitory and mandatory injunction against the defendants on the allegations as made in the plaint. A counter claim was also filed by the defendant- respondent claiming reliefs as prayed for therein. The learned trial Court by its judgment partly decreed the suit of the appellant-plaintiff restraining and prohibiting the defendants from raising any construction over khasra No. 318, measuring 3 biswas, situated in 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - mauza Malyana, Tehsil and District, Shimla. A decree for mandatory injunction directing the defendants- respondents to remove the construction etc. was also granted. The defendants – respondents appealed to the learned District Judge. One of the points raised for consideration of the learned appellate Court was that the respondents (appellants before the first appellate Court) had filed a counter claim on which no issue was framed and no finding given on the evidence which was led and on the record. The learned Court relying upon the judgment of this Court in Om Parkash and others v. State of Himachal Pradesh and others, AIR 2001 HP 18 held that the provisions of Order 20 Rule 5 of the Code of Civil Procedure mandated the Court to decide all issues raised and settled on the pleadings of the parties. The appellate Court rightly held that it was mandatory for the trial Court to have given its finding on each of the issues including the issues which arose for determination on the basis of counter claim as filed. In these circumstances, the case was remanded to the trial Court for decision afresh in accordance with law. Learned counsel appearing for the appellant has strenuously urged that this course was not open to the learned appellate Court which should have only called for findings on the counter claim and should not have remanded the entire matter afresh for decision by - 3 - setting aside the judgment and decree of the learned trial Court. He submits that wholesale remand of a case is to be avoided and cannot be resorted to merely on the asking of a litigant. He submits that the learned trial Court in its judgment has considered the counter claim filed by the respondents. In particular, he has drawn the attention of this Court to paragraph 4 where the Court notes that the counter claim has been filed by the respondents therein. The proposition of law urged cannot be disputed. Remand is always an exception. The submission made by the learned counsel appearing for the appellants herein that the learned trial Court has decided the counter claim cannot be accepted as the judgment clearly indicates that no issue was settled on the counter claim, leave alone deciding the claims put therein. Merely noticing that a counter claim has been filed cannot be treated as a judgment disposing of the claims put forth. On the other contentions raised, all that I need say is that remand in this case was justified for the reason that if counter claim unsettled the claim of the plaintiff, calling for a finding was not sufficient but it was the totality of the case put forth by the plaintiff- appellant and the respondent which was required to be considered. A plea had also been raised that the State was a necessary party. It was for the trial Court to have considered this fact also. In these - 4 - circumstances, I do not find that the appellate Court has committed any illegality in remanding the case to the trial Court afresh for decision. This appeal is accordingly disposed of. There shall be no order as to costs. Pending application(s) shall stand disposed of. March 16, 2009 (PC). (Dev Darshan Sud), J.