IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 173 of 2009 Date of decision: 07.09.2011 ________________________________________________________________ Anil Kumar Mahajan. .....Appellant. Versus Dhempha Ram & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. Virender Singh Rathore, Advocate. For the respondents: Mr. Ashok K. Thakur, Advocate, for respondents No. 1 & 2. None for respondent No. 3, though served. Name of respondent No. 4 stands deleted. V.K. Sharma, J. (Oral). The contesting respondents herein, who were plaintiffs before the learned trial court, had filed a suit for declaration and perpetual prohibitory injunction against the appellant and proforma respondent No. 4 herein, Smt. Jaifli, who died during pendency of the appeal before this Court and as such her name was ordered to be deleted vide order dated 29.10.2010, passed in CMP No. 944 of 2011, being the defendants, which was dismissed vide judgment dated 12.01.2004. However, in appeal, the learned First Appellate Court, after having come to the conclusion that out of the pleadings of the parties the following two additional issues arose which the leaned trial court had omitted to frame: 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... “10-C Whether deceased Piyundi was unmarried and had died issueless and his estate stood inherited by his brother Moti who was father of the plaintiffs? If so its effect. OPP. 10-D Whether deceased Piyundi was married to defendant No. 1 and after his death his estate stood inherited by her? If so its effect. OPD-1” 2. Accordingly, the appeal was allowed and the aforesaid judgment dated 12.01.2004, passed by the learned trial court, was set-aside and the case remanded with the following direction: “........to afford opportunities of leading evidence to the parties on the additional issues framed by this court and then decide the case afresh after giving reasoned findings on all the issues framed in this case in accordance with law. ......” 3. However, the impugned judgment dated 27.11.2008, passed by the learned First Appellate Court, which amounts wholesale remand, is in derogation to the provisions of Order 41 Rule 25 of the Code of Civil Procedure (in short 'CPC'), as has been held by this Court in Nand Lal vs. Sewak and others, 2005 (3) Shimla Law Cases 340 and thus cannot be sustained. 4. In view of the above, the appeal is allowed and the impugned judgment and decree dated 27.11.2008, passed by the learned First Appellate Court, are reversed and instead and the appeal remitted to the learned First Appellate Court with a direction to refer the aforesaid additional issues No. 10-C and 10-D to the learned trial court which shall take the requisite additional evidence and proceed to try the aforesaid additional issues and return the evidence to the learned First Appellate Court together with its findings thereon and the reasons therefor in terms of Order 41 Rule 25 CPC as expeditiously as possible, but not later than six ...3... months from the date of receipt of the records of the case as the case is very old. Thereafter, the learned First Appellate Court shall proceed to rehear the appeal afresh and decide the same in accordance with law within further three months. 5. The appeal stands disposed of in the above terms. The contesting parties herein are directed through their learned counsel to put in appearance before the learned First Appellate Court on 26th September, 2011. The requisitioned records be sent back so as to reach well before the date fixed. Notice shall be issued to the non appearing parties herein by the learned First Appellate Court. (V.K. Sharma) Judge 7th September, 2011 (virender)