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Hajari Chand Mishra v/s Pramod Mittal & Others

    Civil Miscellaneous Appeal No. 5808 of 2017

    Decided On, 17 August 2021

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE ASHOK KUMAR GAUR

    For the Appellants: Abhimanyu Singh, Advocate. For the Respondent: Kapil Gupta, R.S. Sinsinwar, Dharmendar Kumar, Advocates.



Judgment Text

This misc. appeal has been filed by the appellant-plaintiff challenging the order dated 06.10.2017, passed in First Appeal No.04/2015 decided by ADJ No.9, Jaipur Metropolitan, Jaipur.

The appeal was filed by the respondents challenging the judgment and decree dated 21.02.2015 passed in favour of the appellant.

The Appellate Court by the impugned order has held that the Court below had failed to frame an important issue in the suit and by framing an additional issue, the Appellate Court quashed and set aside the judgment and decree dated 21.02.2015 and the matter was remanded back to the Trial Court by framing new issue as issue No.1 and both the parties were directed to lead oral and documentary evidence before the Trial Court and further the finding was again required to be given by the Trial court on issue Nos.1, 2, 4 & 7 as were originally framed by the Trial Court. The Appellate Court had also directed the Trial Court to decide the suit within one year.

The appellant feeling aggrieved against quashing of judgment and decree passed in his favour, assails the impugned order, primarily on the ground of violation of Order 41 Rule 25 CPC.

Learned counsel appearing for the appellant submitted that if the Appellate Court had come to the conclusion that an important issue was not framed by the Trial Court, the Appellate Court had power to frame an additional issue and to that extent, the matter could have been remanded back by taking fresh evidence on the newly framed issue and then the matter was required to be sent back to the Appellate Court for deciding the appeal afresh.

Learned counsel submitted that the Appellate Court has committed an error in quashing and set aside the entire judgment and decree dated 21.02.2015 and further wrongly gave direction to decide issue Nos.1, 2, 4 & 7 afresh.

Learned counsel submitted that the power of the Appellate Court in framing issue and then refer them for Trial to the Civil Court, is very well defined under Order 41 Rule 25 CPC and the Appellate Court without considering the relevant provision of law, has passed the order.

Learned counsel for the appellant submitted that the entire reading of the impugned order dated 06.07.2017, is based on the ground that an important issue was left out and the same was required to be framed as an additional issue and evidence on the same issue, could be collected by the Trial Court.

Learned counsel submitted that there was no basis to ask for findings on the issues, which were already decided as issue Nos.1, 2, 4 & 7 by the Trial Court.

Learned counsel Mr.Kapil Gupta appearing on behalf of the respondents submitted that no error has been committed by the Appellate Court in passing the order of remanding the matter back by the Appellate Court to the Trial Court and further the finding on issues No.1, 2, 4 & 7 is required to be given again in view of additional issue, which has been framed by the Appellate Court.

Learned counsel submitted that there will be inconsistent finding on issue Nos.1, 2, 4 & 7 if maintained, as was passed in the original judgment and decree.

Learned counsel submitted that once the additional issue is to be decided again by the Trial Court, necessarily the other connected issues, needs separate finding by the Trial Court again.

Learned counsel further submitted that the Appellate Court has exercised its power by permitting to lead evidence on the newly framed additional issue only and as such no direction has been given to lead fresh evidence on the issues, which were already framed and decided.

Learned counsel submitted that the Appellate Court has not given any power to the Trial Court to take evidence again on all the issues and as such the appellant has come before this Court on apprehensions.

Learned counsel further submitted that the judgment and decree dated 21.02.2015 was required to be set aside in toto otherwise the findings, which would be recorded on additional issue, can run contrarily to the findings, which were already recorded.

Learned counsel further submitted that there was no interim order passed by this Court while issuing notices in the present appeal and as such the Trial Court has proceeded further with the matter and as such after lapse of four years, this Court may not interfere in the present matter.

Learned counsel for the appellant submitted that record of the Trial Court was summoned by this Court vide order dated 08.02.2019 and as such the matter has not proceeded after remand and as such this Court is required to adjudicate the matter on merits.

I have heard the submissions made by learned counsel for the parties and perused the material available on record.

This Court finds that the Appellate Court while allowing the appeal of the respondents has based its finding only on one ground that an important issue was required to be framed by the Trial Court and since the additional issue was to be adjudicated between the parties after taking an evidence accordingly, the Appellate Court framed the same additional issue and decided to remand the matter back.

There is no doubt about the power of the Appellate Court to frame additional issue, if it finds that the real question in the suit is required to be determined by framing of issue and such issue is essential to the right decision of the suit and the Appellate Court can frame such issue.

This Court further finds that as per power given under Order 41 Rule 25 after framing an additional issue, the Appellate Court can refer/remand the same for Trial to the Court from whose the appeal is preferred and can also direct such Court to take such additional evidence, which is required for deciding the additional issue.

This Court finds that as per power provided to the Appellate Court under Order 41 Rule 25 when additional issue is framed and the matter is referred back to the Trial Court, such Court has to try the Additional issue, which is framed by the Appellate Court and then it is required to return the evidence to the Appellate Court together with the findings and reasons therefore.

This Court in the present facts of the case, finds that the Appellate Court has framed the additional issue and has further directed the parties to lead evidence before the Trial Court, however, the case has been directed to be decided by the Appellate Court by giving direction to the Civil Court that it has to give findings again on issue Nos.1, 2, 4 & 7.

This Court finds that once findings were already recorded on these issues, there was no occasion to direct the Civil Court to give decision on the merits on these issues again.

The Appellate Court was partly right while passing the order that evidence may be led by both the parties in respect of additional issue, which was framed, however, direction to give findings on the already decided issue is not correct interpretation of Order 41 Rule 25.

The submission made by learned counsel for the respondents that the findings on issues Nos.1, 2, 4 & 7 are required again in view of the additional issue framed by the Appellate Court as the finding on newly framed issue and findings on issue Nos.1, 2, 4 & 7 can run contrary to each other, suffice it to say by this Court that if additional issue is framed, then the Trial Court will take evidence on the said issue and will return its finding with reasons to the Appellate Court.

It is for the Appellate Court to take a final view of the matter after evidence is recorded by the Trial Court on additional issue and the Appellate Court in such background of the matter, will decide as whether the appeal of the respondents is to be allowed or decided other way round.

The submission of learned counsel for the respondents that the time has already elapsed for more than four years and as such this Court may not interfere at this stage, suffice it to say that if time bound direction has been given to the Trial Court to decide the additional issue, things can be proceeded as per law and as per power given to the Courts including the Appellate Court and Civil Court.

Accordingly, this Court finds that the order dated 06.10.2017 is required to be quashed to the extent that it gives power to the Civil Court to give findings on issues Nos.1, 2, 4 & 7

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and this Court maintains the order of the Appellate Court to the extent of framing additional issue and directing the Civil Court to take evidence of both the parties on the newly framed issue and further the findings of the said issue are required to be returned back to the Appellate Court. This Court considering the nature of dispute between the parties, deems it proper to grant three months’ time to the Appellate Court to take evidence on the newly framed issue and immediately after recording evidence, the findings be sent to the Appellate Court and the Appellate Court on receiving such finding, will decide the appeal afresh after taking into consideration the relevant facts and law. The observations made by this Court in the present appeal will not have any bearing on the proceedings, which are continued before the Civil Court and the Appellate Court. Accordingly, the present appeal stands disposed of.
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