Anis Hassan vs Munshi Kamruddin (Since ...
2014 Latest Caselaw 6258 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                       Date of Decision: November 27, 2014
+      RSA 82/2014

       ANIS HASSAN                            ..... Appellant
                           Through :    Mr. Santosh Kumar and
                                        Mr.Madhurendra Sharma,
                                        Advocates.

                           versus

       MUNSHI KAMRUDDIN (SINCE DECEASED) THR
       BISHMILLA KHATOON & ANR..... Respondent
                    Through : Mr. O.P. Verma, Advocate for R1.
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% (ORAL)

RSA 82/2014 & CM No. 4964/2014 Vide the impugned order of 6th January, 2014, the first Appellate Court has remanded the suit for injunction to the trial court with directions to decide it afresh on the basis of evidence already led by the parties.

The challenge to the impugned order of 6th January, 2014 is on the ground that Order XLI Rule 23 & 23-A of CPC prohibits adopting of such a course. Even if the two issues have been wrongly clubbed by the trial court, still the first Appellate Court can return an independent finding on the two issues and remand in such a situation is impermissible. Reliance is placed upon the Apex Court's decision in P. Purshottam Reddy and Another v. Pratap Steels Limited (2002) 2 SCC 686.

RSA 82/2014 Page 1 Learned counsel for the first respondent fairly submits that in view of the dictum of Apex Court in P. Purshottam Reddy (supra), the first Appellate Court has to decide the appeal by returning an independent finding on the basis of material on record. However, it is pointed out by learned counsel for the first respondent that in a similar suit against first respondent filed by Sudhar Samiti which has to be also decided by the first Appellate Court, the similar remand order in the said suit would be very shortly challenged by the first respondent.

It is pointed out by learned counsel for the first respondent that on remand in the similar suit by the Sudhar Samiti against the first respondent, the arguments have been heard and if the judgment is rendered in the said suit then it would materially prejudice the first respondent.

Upon hearing both the sides and on perusal of impugned order, the material on record and in view of the dictum of the Apex courts in P. Purushottam Reddy (supra), the impugned judgment is unsustainable and is accordingly set aside with the direction to the first Appellate Court to decide the appeal on merits. So far as the proceedings against the first respondent in the suit filed by Sudhar Samiti is concerned, let the trial court not pass the final order for a period of four weeks from today, to avoid conflicting decisions.

The appeal and the applications are accordingly disposed of.

                                                       (SUNIL GAUR)
                                                          JUDGE

      NOVEMBER 27, 2014/j

RSA 82/2014                                                           Page 2