SAO No.22 of 2008 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH SAO No.22 of 2008 Date of Decision : 12.2.2009 Gurdev Kaur ..Appellant. Vs. Mukand Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Gurcharan Singh, Advocate for the appellant. Mr.H.N.Mehtani, Advocate for respondents. RAKESH KUMAR JAIN, J.(ORAL) Challenge in this appeal is to the order passed by Additional District Judge, Sangrur dated 7.8.2008 whereby after framing two additional issues i.e. “Whether the agreement to sell dated 25.7.1990 executed by defendant No.2 in favour of defendant No.3 is forged and fictitious document and is the result of collusion between the defendants, if so, its effect on the claim of the plaintiff? OPP and “Whether the defendant No.3 is the bonafide purchaser for consideration with notice? OPD-3”, the matter has been remanded back to the trial Court with a direction to decide the case afresh to decide the case afresh after affording opportunities to the parties to lead evidence on the issues framed afresh. Tersely, the facts of the case are that respondent No.1 (plaintiff) Mukand Singh filed a suit for possession by way of specific performance of agreement to sell dated 29.6.1992 in respect of land measuring 25 Bighas. SAO No.22 of 2008 -2 - The trial Court vide its judgment and decree dated 15.3.2000 found that plaintiff has failed to prove his entitlement to the suit land by way of specific performance of agreement to sell (Ex.P1) and to declare the sale deed dated 30.12.1992, judgment and decree dated 5.2.1993 as null and void and to restrain the defendants from alienating the suit property or dispossessing the plaintiff from the suit land. However, in the alternative, it was found that the plaintiff has proved his entitlement for recovery of Rs.One lac from defendants No.1 and 2. The suit was thus, partly decreed in respect of recovery of Rs.One lac from defendants No.1 and 2 with costs. The plaintiff was aggrieved against the judgment and decree of the trial Court. He filed an appeal under Section 96 of the Code of Civil Procedure (for short `CPC'). During the pendency of the appeal, the plaintiff filed an application under Order 14 Rule 5 read with Section 151 CPC for framing fresh issues which according to him were arising out of the pleadings of the parties and were not framed by the trial Court. The application was contested by the appellant (Gurdev Kaur) but it was allowed by the learned first Appellate Court who had found that two material issues were left out which are required to be decided for effective decision of the case. Sh.Gurcharan Singh, learned counsel for the appellant has contended that order of the learned first Appellate Court is contrary to the provisions of Order 41 Rule 25 of CPC as it has been provided therein that 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 SAO No.22 of 2008 -3 - 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). Learned counsel for the appellant has further submitted that the order of the learned Additional District Judge, Sangrur is illegal and erroneous to the extent whereby while remanding the case to the learned trial Court directing him to decide the case afresh meaning thereby the entire case has to be reopened although evidence has already been led on all other material issues. The learned counsel for the appellant, therefore, submits that in the order of the learned first Appellate Court “remanding the case to the lower Court with a direction to decide the case afresh” may be deleted and rest of the order may be kept intact and direction be given to the trial Court to give ample opportunities to the parties to lead evidence on the issues framed afresh and adjudicate it in accordance with law. On the other hand, Sh.H.N.Mehtani, learned counsel for the respondents contended that the order passed by the first Appellate Court is in accordance with law and does not require any interference by this Court. After giving my thoughtful consideration to the rival contentions raised by the learned counsel for the parties, I am of the considered view that the order of Additional District Judge, Sangrur dated 7.8.2008 insofar as it relates to remanding the whole case with a direction to the trial Court to decide afresh, is bad in law as it runs contrary to the provisions of Order 41 Rule 25 CPC. The ends of justice would be met if the later portion of the impugned order dated 7.8.2008 is kept intact SAO No.22 of 2008 -4 - whereby the first Appellate Court had directed the trial Court to give opportunity to the parties to lead evidence on the issues framed afresh. In view of the above discussion, the present appeal is partly allowed. The portion from the impugned order “remanding the case to the lower Court with a direction to decide the case afresh” is hereby deleted but it is ordered that rest of the order shall remain intact. The parties shall appear before the trial Court on 2.4.2009. The trial Court is further directed to decide the issues within a period of six months after affording two effective opportunities to both the parties to lead their respective evidence on the issues framed afresh and return findings thereon along with evidence to the first Appellate Court thereafter. No costs. (Rakesh Kumar Jain) 12.2.2009 Judge Meenu