S.A.O.No.20 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-19.8.2010 Punjab Wakf Board, now Haryana Wakf Board, Ambala Cantt. ...Appellant Versus Subash Chand and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Jai Bhagwan, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) Tersenessly, the facts, culminating in the commencement, relevant for disposal of core controversy involved in the present appeal and emanating from the record, are that Subash Chand son of Karam Chand and others respondent- plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of declaration with a consequential relief of permanent injunction restraining the Punjab Wakf Board-appellant defendant No.1 and proforma respondent Nos.4 to 6/defendants (hereinafter to be referred as “the defendants”) from interfering in the ownership and possession of Shri Guru Granth Sahib over the Gurudwara and from taking possession of the property in dispute. 2. The defendants contested the suit, filed their written statements, stoutly denied the claim of the plaintiffs and prayed for dismissal of the suit. 3. In the wake of pleadings of the parties and having framed the relevant issues for proper adjudication, the trial Court slated the case for evidence of the plaintiffs. Thereafter, as even in spite of availing three opportunities, the plaintiffs did not produce their evidence, therefore, the same was closed by the trial Court. Consequently, in the absence of any evidence, the suit of the plaintiffs was dismissed by the trial Court under Order 17 Rule 3 CPC, by virtue of S.A.O.No.20 of 2010 2 judgment and decree dated 9.4.2008. 4. The plaintiffs did not feel satisfied with the judgment and decree of the trial Court and filed the appeal. The first appellate Court accepted the appeal, set aside the judgment and decree and remanded the matter back to the trial Court, vide impugned judgment dated 31.8.2009, the operative part of which is as under:- “In view of the aforesaid discussion, the appeal is accepted with costs and the impugned judgment and decree is set-aside in the terms that the suit is remanded back with the directions to the learned lower court to proceed with the case as per law, by granting only two effective opportunities to the plaintiffs to produce their entire evidence subject to payment of Rs.5000/- as cost. Cost shall be given to the defendant no.1 before the learned lower court. Decree sheet be drawn accordingly. Parties through their counsels are directed to appear before the learned lower court on 7.9.2009.” 5. The appellant-defendant No.1 Punjab Wakf Board did not feel satisfied with the impugned judgment of the first appellate Court and filed the present appeal. That is how, I am seized of the matter. 6. Having heard the learned counsel for the appellant-defendant No.1, having gone through the record with his valuable help and after considering the matter deeply, to me, there is no merit in the appeal. 7. Ex facie, the main argument of the learned counsel for the appellant- defendant that the plaintiffs did not produce their evidence despite three opportunities and since the trial Court has rightly dismissed their suit, so, the first appellate Court committed a legal error in remitting the case to the trial Court, is not only devoid of merit but misplaced as well. 8. As is evident from the record that the trial Court simply dismissed the suit of the plaintiffs owing to non-production of their evidence despite three opportunities under Order 17 Rule 3 CPC. That means, the trial Court dismissed the suit on merits, without recording any evidence and adopted the novel method of showing it to be a contested suit. In my view, the first appellate Court validly S.A.O.No.20 of 2010 3 corrected the error committed by the trial Court, in this relevant connection. The first appellate Court has only remanded the matter to the trial Court to decide it afresh after affording two opportunities to the plaintiffs in accordance with law. In that event, the appellant-defendant cannot possibly be termed to be in any manner aggrieved by the impugned judgment of the first appellate Court. 9. In this manner, no injustice has been caused to the appellant- defendant No.1, muchless manifest injustice, which would occasion this Court to interfere in the impugned judgment. Such judgment cannot possibly be set aside by this Court in second appeal, unless the same is perverse or without jurisdiction. No such patent illegality or legal infirmity has been pointed out in the impugned judgment by the learned counsel for the appellant-defendant No.1. 10. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant No.1 in this relevant connection. 11. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of trial of the suit, as there is no merit, therefore, the instant appeal is hereby dismissed in the obtaining circumstances of the case. (Mehinder Singh Sullar) 19.8.2010 Judge AS