The Haryana Wakf Board v. Smt.Chander Kala & Ors.

previously known as Punjab Wakf Board appellant-defendant No.4, is to the judgment dated 19.9.2005, by virtue of which, the first appellate Court has set aside the judgment and decree dated 19.9.2002 and remanded the case back to the trial Court for its fresh decision.

2. The epitome of the facts, relevant for a limited purpose of deciding the concise controversy involved in the instant appeal and emanating from the record, is that originally, plaintiff Zorawar Singh (since deceased), being represented by his widow Smt.Chandera Kala and daughter Smt.Santosh Jatian respondent Nos.1 and 2/plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of declaration to the effect that the revenue entries from 1961 onwards are wrong, illegal, malafide, null & void and liable to be corrected in their names under sections 5 and 8 of the Punjab Tenancy Act with a consequential relief of permanent injunction restraining the Union of India, Haryana Wakf Board and proforma respondent Nos.3 to 7/defendants (hereinafter to be referred as “the defendants) from interfering into their peaceful possession over the land in dispute.

3. The defendants contested the suit, stoutly denied all the allegations S.A.O.No.53 of 2005 2 contained in the plaint and prayed for dismissal of the suit.

4. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:-

1. Whether the plaintiff is owner in possession over the disputed land since 1961, if so whether the plaintiff is entitled for injunction as prayed?OPP

2. Whether the suit of the plaintiff is not maintainable in the present form?OPD

3. Whether the plaintiff is estopped from filing the present suit by his own act & conduct?OPD

4. Whether the suit is barred by section 80 CPC?OPD

5. Whether this Court has got no jurisdiction to try and decide this suit?OPD

6. Whether the plaintiff has no cause of action for filing the present suit?OPD

7. Relief.

5. The parties to the lis, brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas.

6. Taking into consideration the entire evidence on record, the trial Court decided issue No.1 against the plaintiff, while issues No.2 and 5 were answered in favour of the defendants. As the defendants did not press, therefore, issue Nos.3, 4 and 6 were answered against them. In view of findings on various issues, the trial Court dismissed the suit of the plaintiffs, by virtue of judgment and decree dated 19.9.2002.

7. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the appeal. The first appellate Court accepted the appeal and remanded the matter to the trial court for its fresh decision, vide impugned judgment dated 19.9.2005.

8. The appellant Haryana Wakf Board defendant No.4, did not feel satisfied with the impugned judgment of Ist appellate Court and filed the present appeal. That is how, this matter is placed before me. S.A.O.No.53 of 2005 3

9. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the judgment of the Ist appellate Court cannot legally be sustained, therefore, the instant appeal deserves to be accepted for the reasons mentioned here-in-below.

10. As is clear from the record that the plaintiffs filed the suit for a decree of declaration and permanent injunction against the defendants. On ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs. In the wake of acceptance of the appeal filed by the plaintiffs, the first appellate Court remanded the matter back to the trial Court, vide impugned judgment dated

19.9.2005, the operative part of which is as under:- “While on the file after recording the statement of DW2 Ranbir Singh, Kanungoo, Shri A.K.Chauhan, Learned Govt. Pleader for defendant nos.1 to 3 although has closed the evidence. But his signatures are not on the statement closing the evidence. Shri V.K.Garg, Advocate was representing defendant nos.4 to 6. But no where the evidence on behalf of defendant nos.4 to 6 has been closed. So ample opportunity is not given to defendant no.4 and 5 to lead the evidence. There is no order on the file regarding closing the evidence of respondent no.4 and 5. So, in these circumstances, the following issue No.1A is reframed:- 1A:- Whether the plaintiff is in possession over the disputed land since 1961, if so, whether he is entitled for the injunction as prayed?OPP So the case is remanded to the learned trial Court to give proper opportunity to lead the evidence to both the parties on the new issue 1A and also proper opportunity to be given to the counsel for respondents-defendants no.4 and 5 and then the case be decided again on merit. With these observations the case is remanded to the learned trial court with the direction to decide afresh after giving proper opportunity to the parties to lead S.A.O.No.53 of 2005 4 evidence on the new issue. Appeal is disposed of accordingly.”

11. Such thus being the position on record, now the core question that arises for determination in this appeal is, as to whether the first appellate Court was legally justified in remitting the case to the trial Court or not?

12. Having regard to the rival contentions of the learned counsel for the parties, relatable to the material on record, to my mind, the Ist appellate Court has just ignored the legal provisions, with impunity and committed a legal error in this relevant connection.

13. As indicated earlier, the first appellate Court has remanded the case on very hyper-technical two grounds (i) since there are no signatures of the Advocate on the statement closing the evidence, so, it has to be presumed that ample opportunity was not granted to defendant Nos.4 and 5 to lead evidence and reframed issue 1-A, the controversy of which, is squarely covered under issue No.1 already framed by the trial Court.

14. In this manner, the first appellate Court has adopted a novel method of disposal of appeal. It is no body's case that the trial Court did not afford adequate opportunity to defendant Nos.4 and 5 to lead their evidence, particularly when even defendant No.4 has itself challenged the impugned judgment in the instant appeal. Mere non signing of statement of counsel, is not a cogent ground to presume that no opportunity to lead evidence was given to them by the trial Court as wrongly observed by the Ist Appellate Court. Sequelly, there was no necessity to recast the issue, the subject matter of which was squarely covered under issue No.1, already framed by the trial Court to decide the real controversy between the parties.

15. Order 41 Rule 24 CPC postulates that “where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal S.A.O.No.53 of 2005 5 is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” Rule 25 posits 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, 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.”

16. Meaning thereby, the first appellate Court can remand the case to the trial Court only in that eventuality, if the case squarely falls within the ambit and four corners of Order 41 Rule 25 CPC and not otherwise. If there is sufficient evidence on record, then it was for the Ist appellate Court to decide the case on merits as envisaged under Rule 24 CPC. The law laid down by this Court in SAO No.3 of 2009 titled as “Jagtar Singh and another vs. Bachan Singh and others” decided on 02.07.2010 “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

18. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing, the instant appeal is hereby accepted. The impugned judgment dated 19.9.2005 is set aside and the matter is sent back to the first appellate Court to decide the appeal afresh on merits, in accordance with law.

19. The parties through their counsel are directed to appear before the first appellate Court on 21.9.2010. (Mehinder Singh Sullar) Judge

10.8.2010 AS