A.R. Nim vs Vishwamitra
2010 Latest Caselaw 807 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA(OS) No.27/1980

A.R. NIM                       .....Appellant through
                               Mr Harish Malhotra, Sr Adv. with
                               Mr Vipul Gupta, Advs.
                   versus

VISHWAMITRA                    .....Respondent through
                               Mr Amit Sibal and Ms Divya Jain,
                               Advs.

%                              Date of Hearing: January 14, 2010

                               Date of Decision: February 11, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE MANMOHAN SINGH
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                    No
      2. To be referred to the Reporter or not?          Yes
      3. Whether the Judgment should be reported
         in the Digest?                                  Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails the Order of the learned Single Judge

passed in Suit No.29/1972 on 24.4.1980 which decreed the Suit for

Declaration and Injunction. The Original Plaint contained the

following Prayers:-

(1) It be declared that the defendants have no right, title or interest, by inheritance or otherwise in property No.16, Hanuman Road, New Delhi, and (2) A mandatory injunction be issued against the defendants to quit and remove themselves and all their belongings from the premises in dispute and never to enter the same.

2. After the completion of pleadings, initially the following

Issues were framed on 9.5.1972:-

1. Whether the plaint as framed has been correctly valued for purposes of court fee?

2. If issue No.1 is decided against the plaintiff, then what is the value of the subject matter of the suit for purposes of court fee and jurisdiction?

3.Whether the suit is maintainable under S.34 of the Specific Relief Act?

4. Whether on the facts of the present case a suit for mandatory injunction or declaration is not maintainable?

5. Whether Shri Puran Chand made a Will dated 5.6.65? If so, is the same valid?

6.If issue No.5 is decided in favour of the plaintiff, to what property does the said will relate?

7. Whether defendants No.1 and 2 are entitled to any part of the property, subject matter of the suit by adverse possession?

8. If issue No.5 be held against the plaintiff, is defendant No.2 entitled to any share in the property left by Puran Chand. If so what is her share?

3. It appears that the Written Statement was permitted to be

amended and consequently an additional Issue was struck namely:-

Whether Vishva Mitra, plaintiff, is the son of Rai Sahib Puran Chand as alleged in the plaint?

4. A perusal of the Orders passed in the present Appeal

discloses that on 29.5.1984 the Plaintiff/Respondent was permitted

"to amend the suit so as to add fresh reliefs in the alternative and

also the consequential amendments in para 10 of the plaint. The

amendments will be effective from 20.9.1983, the date of the filing

of the present application".

5. Thereafter in these proceedings the amended Plaint dated

5.12.1983 was taken on record, in which it has been prayed that:-

(1) It be declared that the plaintiff is the sole owner of the property comprising No.16, 16-A and 16-B, Hanuman Road, New Delhi and the defendants have no right, title or interest of any kind by inheritance or otherwise in the above mentioned property, and (2) decree for possession of the property in dispute which is shown in red colour and is marked as A, B,C, D in the plan attached to the plaint and described in para No.2 of the plaint be passed in favour of the plaintiff and against the defendants.

6. Thereafter, the Appeal was adjourned from time to time.

7. In the course of the hearings before us, it has been

contended by Mr. Harish Malhotra, learned Senior Counsel for the

Appellant, that consequent upon an amendment to the plaint

having been permitted, the lis should be remanded to the learned

Single Judge on the Original Side of this Court for Framing of

Issues and for leading additional evidence. Mr. Amit Sibal, learned

counsel for the Respondent, does not argue to the contrary except

for making the minor but significant clarification that the Remand

Order should not have the effect of setting at naught (i) the Issues

predicated on the existing pleadings; (ii) the evidence of the

parties recorded pursuant thereto and (iii) the Judgment.

8. The controversy before us, therefore, is within a short

compass. The contention is that the Appellate Court is competent

to frame additional Issues, as also record the evidence thereon. His

submission is that so far as the Plaintiff is concerned, no further

evidence needs to be led. The fact remains that if yet another

additional Issue is necessitated, it would be improper not to allow

the Defendant an opportunity to cross-examine the Plaintiff's

witnesses with regard to this Issue and also to lead its own

evidence.

9. Reliance has also been placed on behalf of the Respondent

on Order XLI Rule 25 of the Code of Civil Procedure, 1908 which

reposes in the Appellate Court the power to frame Issues and refer

them for Trial to the Court whose decree has been appealed from.

In our view, this Section does not apply, as is facially evident from

a consideration of the opening words of the Section which

postulates a situation where the Trial Court has omitted to frame

or try an Issue, or to determine any question of fact. As has been

narrated hereinabove, the need to amend the Plaint was felt and

thereupon pressed by the Respondent/Plaintiff in the course of

hearings of the Appeal. This very conundrum was sought to be

unraveled in Bachahan Devi -vs- Nagar Nigam, Gorakhpur, (2008)

12 SCC 372, the facts of which were strikingly similar. In that case,

one of the Plaintiffs was declared the owner of the land. In the

course of the hearings of the Appeal, an application for carrying

out amendments to the Written Statement was permitted by the

Appellate Court and additional Issues were also framed. Their

Lordships opined that an order of Remand should not be passed

routinely since the Appellate Court retains the power to analyse

the factual position as well as decide the additional Issues. Their

Lordships emphasized on the presence of the word "may" and,

therefore, there was no compulsion that the Appellate Court may

itself frame Issues and record evidence. We can do no better than

extract the salient paragraph from this Judgment:-

11. A bare reading of the provision makes it clear that the same comes into operation when the court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring an application of Order 41 Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate court to do so. This is clear from the use of the expression "may". But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the

lower court shall proceed to try such case and shall return the evidence to the appellate court together with the findings therein and the reasons thereof. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and reasons therefor. (Emphasis supplied)

10. It will be justified to reiterate that the need to frame

additional Issues and lead evidence thereon has arisen because of

the amendment to the plaint allowed in these appellate

proceedings. Having considered all the complexities of the case,

we are of the opinion that the proper course to adopt is to remand

the matter to the Original Side of this Court, with a direction that

the appropriate Court should frame fresh/ additional Issues and

record evidence thereon. We clarify that the evidence already

recorded in the backdrop of the existing Issues will remain

efficacious and relevant. The learned Single Judge shall thereafter

reappraise the evidence, if found necessary by him, and pass a

fresh judgment or affirm the impugned judgment with additions, as

may be found relevant. It is again clarified that this Remand shall

not have the effect of setting aside the impugned Judgment.

11. Since a part of the Trial is to resume at the instance of the

Plaintiff, we direct the Registry to renumber the Suit on

contemporary basis and allot a fresh number vice the existing one

which will be deemed to have been disposed of.

12. Appeal is disposed of in these terms. Parties to bear their

respective costs.

13. Trial Court record be sent back.

                                    ( VIKRAMAJIT SEN )
                                          JUDGE




                                    ( MANMOHAN SINGH )
February 11, 2010                        JUDGE
tp