IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO 51 of 2002. Judgment Reserved on 24.3.2008. Date of decision March 31, 2008. Achhar Singh and others ….Appellants. Versus Maya Devi and others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr.B.K.Malhotra, Advocate. For the respondents Mr.Ashwani Sharma, Advocate. Dev Darshan Sud, J. This is the defendants’ appeal against the order of the learned against the order of the learned Additional District Judge, Mandi accepting the appeal of the respondent- plaintiffs reversing the judgment of the learned trial Court dismissing the suit of the plaintiff for permanent prohibitory injunction. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - The learned trial Court on the crucial issue of the entitlement of the plaintiff for a decree as prayed for, held against the plaintiff. An appeal was filed before the learned District Judge, who held that the trial Court does not appear to have framed material issues arising out of the pleadings and in view of that fact the judgment and decree of the trial Court was set aside and remanded the case for framing of fresh issues and retrial. The learned appellate Court held that the material question for decision before the trial Court was as to whether respondent No. 7 is in actual physical possession of the suit land after its purchase from one Shri Chet Ram. No issue has been framed by the trial Court on this, although this respondent has been given an opportunity to appear as a witness. The appellate Court holds that in the absence of an issue the statement of this witness who appeared as DW-7 is of no consequence and has caused serious prejudice to respondent No. 7 Smt. Prem Lata and also to the appellants. In conclusion, the learned Court holds that proper issues have - 3 - not been framed and, therefore, the matter was remitted for reframing of issues. I have heard the learned counsel for the parties and gone through the record. Apart from the fact that the evidence of the respondent is already on record and could have been considered as it was led without objection from any party as being irrelevant to any issue yet, learned appellate Court has not considered this fact. In any event, the whole sale remand is not countenanced by the Code of Civil Procedure. Order 41 Rules 24 and 25 of the Code of Civil Procedure provide: “ 24. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after re-settling the issue, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground - 4 - other than that on which the Appellate Court proceeds.” “25. 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 issue, 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 therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.” - 5 - In this eventuality, it was not open to the learned appellate Court to have sent the matter back by way of wholesale remand as has been done in the present case. It is by now well settled that a remand cannot be made merely because no issue has been framed. Surely, if the evidence on record can be used for determining the controversy between the parties, there is no necessity of remanding the case. Order 41 Rule 24 of the Code of Civil Procedure is clear. The provisions of Rule 25 can be resorted to in the circumstances set out therein. In both situations, no wholesale remand is contemplated. The judgment of the learned appellate Court cannot be sustained. In the circumstances, the judgment in appeal is quashed and set aside and direction issued to the learned appellate Court to determine afresh as to whether the conditions of Order 41 Rule 24 are satisfied or whether there is need to frame fresh issue(s). While doing so, the learned District Judge will keep in mind the settled principles of law that wholesale remand should be the last resort. He will also - 6 - keep in mind that the evidence on record which has been led by the parties, even in the absence of issues, has been taken without objection. Parties are directed to appear before the learned Appellate Court on 17.6.2008. The record of the proceedings be sent back immediately. There shall be no order as to costs. March 31, 2008(PC). (Dev Darshan Sud), J.