Shreyans Industries Ltd. vs Hukum Chand
2002 Latest Caselaw 784 Del

JUDGMENT

R.C. Jain, J.

1. This Second Appeal raises an important question of law as to whether a First Appellate Court can try and dispose of a suit on merits, without there has been any trial of the suit by the Court of the first instance.

2. Briefly the relevant facts are that the plaintiff-respondent herein had filed a suit against the present petitioner praying for an injunction against his transfer from the Delhi Office of the petitioner to Ahmedgarh in Punjab on the premises that the terms and conditions of his appointment did not stipulate his transfer/shift from Delhi to some other place. The suit was contested by the petitioner-respondent, inter alia, on the ground that the suit was not maintainable in the form in which it was presented, as no relief of declaration claimed against the impugned order being bad. The trial court had framed the following preliminary issue : "Whether the suit is maintainable in the present form" and after hearing the counsel for the parties vide order dated 19.3.1996 answered the same in negative and against the plaintiff-respondent and dismissed the suit.

3. Aggrieved by the dismissal of his suit, the plaintiff-respondent approached the First Appellate Court with an appeal and the Appellate Court on a consideration of the matter has not only set aside the impugned order of the trial court dated 19.3.96 dismissing the suit and holding that the suit so framed was maintainable, but also decreed the suit by giving direction to the petitioner-defendant to allow the plaintiff-respondent to join the duties at Delhi Office and also to pay him wages for the period in which he has not been allowed to perform his duties at Delhi Office. This Second Appeal has been filed challenging the order of the learned Additional District Judge dated 21.12.2000.

4. I have heard the learned counsel for the parties and have given full consideration to their respective submissions.

5. Mr. Saini, learned counsel for the appellant has assailed the impugned judgment of the First Appellate Court primarily on the ground that the First Appellate Court while dealing with the first appeal against the dismissal of the suit of the plaintiff-respondent at best could have allowed the appeal and set aside the impugned order, but it had no jurisdiction and power to decree the suit itself and giving directions which were not even prayed for by the plaintiff-respondent in the main suit without the trial of the suit. The contention has merit in as much as it is an established legal position that every civil suit has to be tried and disposed of by the competent court having jurisdiction in the matter in accordance with the procedure laid down under the code of civil procedure. The power and jurisdiction of the appellate court is well defined in law. In the case in hand, admittedly the suit filed by the plaintiff was not tried and answered on merit by the trial court but was dismissed on a preliminary objection/plea with regard to the maintainability of the suit.

6. On the face of the above factual and legal position, the jurisdiction of the learned Additional District Judge while sitting as the First Appellate Court was either to dismiss the appeal or allow the same by setting aside the judgment and decree passed by the trial court. Once the First Appellate Court has found that the finding of the learned trial court on the preliminary issue of maintainability of the suit was not sustainable and the suit was maintainable in the form in which it has been framed, the only course open for the appellate court was to remand back the matter to the trial court for trial of the suit on merits in accordance with law. The trial court has, therefore, erred in not doing so and having disposed of the suit and had decreed the same by giving certain directions to the petitioner-defendant. The impugned order passed by the learned First Appellate court cannot be sustained and is liable to be set aside.

7. In the result, this appeal is hereby allowed and the judgment and decree dated 21st December, 2000 passed by the learned Additional District Judge, Delhi so far as it had decreed the suit and has given the direction to the petitioner to allow the defendant to join his duties at Delhi Office and also to pay him wages for the period for which he was not allowed to work at Delhi Office are hereby set aside and the matter is remanded back to the learned trial court for disposal of the suit of the plaintiff-respondent in accordance with law as expeditiously as may be practicable, but not later than six months from the date of the communication of this order. It will be open to the parties to press all the pleas and contentions on merits of the case before the trial court. In the circumstances, the parties to bear their own costs in the proceedings.