Case: Nirmala Devi Vs. Gurgaon Scheduled Caste Vimukta Agricutlure Thrift &amp; Credit Society Limited &amp; Others

2. The present appeals, by special leave, call in question the legal propriety of the judgment and order dated 1st February, 2016, in R.S.A. No.2046 of 2012 passed by the High Court of Punjab & Haryana at Chandigarh, vide which the learned Single Judge after considering various aspects has heldthis stage, without embarking upon merits of this case, lest it may prejudice anybodys case at the relevant stage, it can be appreciated that the trial Court has adverted only to the findings under issues No.1 and 2 and such findings have been made subject matter of decision of issues No.3 and 4. Issue No.3 could have been framed on the basis of stand taken in the written statement as well as on the basis of pleadings of the counter claim. No specific issue of counter claim was framed though the onus of issue No.3 was fastened upon the defendants. Even, if, it is taken to be an issue framed on counter claim, the findings were required to be returned by the trial Court independently. As mentioned in para No.22 of the judgment of the trial Court, the findings under issue No.3 have been returned on the basis of findings recorded on issue No.1 and 2. No decision has been given on the counter claim in the concluding part of the judgment nor the relief of counter claim was incorporated in the relief clause. Even the defendants did not consider themselves to be aggrieved by the decision of the trial Court giving no decision on counter claim. The lower Appellate Court in para No.27 of the judgment has recorded a fact that in view of findings given by the trial Court on all the issues, particularly on issue No.3, counter claim in favour of defendant No.3 can be presumed to have been allowed. Once there is no finding under issue No.3 by the trial Court, there was no occasion for the lower Appellate Court to give such a finding, which is claimed to be totally misreading of evidence. Since the counter claim has not been adverted to by the trial Court nor the same was incorporated in the relief clause, nor any proper issue was based upon counter claim, therefore, the requirement of Order 8 Ruleof CPC has not been complied with.At this stage, this Court feels that in the absence of decision on counter claim, any finding given on merits may prejudice the case of either party, therefore, it will be just and expedient to call upon the trial Court to advert to the counter claim and give necessary findings after framing proper issue on the counter claim. Since the plea of counter claim may affect findings under other issues as well, therefore, while remanding the case to the trial Court, the findings on other issues are necessary to be reversed. Ordered accordingly. However, trial Court shall decide all the necessary issues afresh without being influenced by anything recordedTrial Court would make every endeavour to decide the suit expeditiously by giving short adjournments to the parties."

Reasoning:
5. On a perusal of the judgment of the trial Court, it is perceivable that the issue No.3 pertained to ownership. A finding had been recorded in favour of the defendant, the respondent herein. In First Appeal, the same was affirmed, but, in Second Appeal, the High Court on the grounds, as has been statedhas set aside the same and remitted the matter to the trial court.In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884  , wherein it has been held that where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was thatwhich vitiates proceedings. We have referred to this judgment solely for the purpose of the counter claim. As we have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim. The counter claim was not, in that way, an independent claim.8. In view of the aforesaid, the High Court should have been well advised to dwell upon the merits of the case and should not have remanded the matter to the trial court.