Vishva Mitra (Deceased) Thr His ... vs A R Nim (Deceased) Thr His Lrs
2015 Latest Caselaw 5206 Del

$~49
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 21.07.2015
+       FAO (OS) 386/2015

VISHVA MITRA (DECEASED) THR HIS LRS                            .... Appellant
                  versus

A R NIM (DECEASED) THR HIS LRS                                 ..... Respondent

Advocates who appeared in this case:
For the Appellant      :     Mr Gaurav Mitra with Mr Rishab
                             Maheshwari and Ms Deepali Dwivedi,
                             Advocates.
For the Respondent     :      None.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM No.12653/2015 (exemption) Exemption is allowed subject to all just exceptions.

CM Nos.12652/2015 (for condonation of delay in re-filing the appeal) The delay in re-filing the appeal is condoned.

The appeal stands disposed of.

FAO (OS) 386/2015

1. This appeal is directed against the order dated 26.02.2015 passed

by the learned Single Judge in CS(OS) 748/2010. The case was listed for

final arguments before the learned Single Judge. This case has a

chequered history. The suit was initially filed in the year 1972, although

it bears the number and year of 2010. That was because the Division

Bench by virtue of its order dated 11.02.2010, while remanding the

matter to the Single Judge, had directed that it be numbered

contemporaneously.

2. The entire controversy before us is with regard to the interpretation

of paragraph 10 of the Division Bench's order dated 11.02.2010 passed in

RFA (OS) 27/1980. The learned counsel for the appellant submits that

the directions given by the Division Bench in paragraph 10 of the said

order dated 11.02.2010 ought to be read in the context and in the

backdrop of what is to be found in paragraphs 7 and 8 of the said order.

It is for this reason that paragraph Nos.7, 8 and 10 are extracted herein

below:-

"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. xxxx xxxx xxxx xxxx

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."

(underlining added)

3. The controversy which was raised before the learned Single Judge

was whether the original judgment and decree dated 24.04.1980 in the

said suit (earlier numbered as Suit No.29/1972) continued to hold the

field and as to whether the remand was only limited to the framing of

additional issues and evidence being considered on those issues and

conclusions being arrived on those issues alone. The learned counsel for

the appellant/plaintiff submitted that the meaning and purport of the

Division Bench's order dated 11.02.2010 was that the earlier judgment

and decree was to remain intact and that the learned Single Judge was to

only consider the additional evidence on the additional issues which were

to be framed by the learned Single Judge. We may point out that the

additional issues were framed by the learned Single Judge subsequently

on 13.08.2010 and those additional issues are as under:-

"1. Whether the plaintiff has valued the suit property correctly in accordance with the law in the amended suit? OPP

2. Whether this Court possesses pecuniary jurisdiction to entertain and try the Claim in the amended suit? OPP

3 Relief. "

We may also point out that the evidence has been led by the respective

parties on the additional issues also.

4. The learned Single Judge has construed the Division Bench's order

to mean that the learned Single Judge can examine the evidence recorded

earlier as also the evidence recorded on the additional issues and come to

an overall conclusion on all issues and deliver a judgment thereon. The

learned counsel for the appellant "vehemently" argued before the learned

Single Judge as also before us that the findings of the learned Single

Judge on the earlier occasions were not to be touched upon by the learned

Single Judge after the remand and that the remand was only limited to the

additional issues which were directed to be framed and on which

additional evidence had been led.

5. We do not agree with the submissions made by the learned counsel

for the appellant and we fully endorse the views expressed by the learned

Single Judge in the impugned order dated 26.02.2015. Paragraph 7 of the

Division Bench's order, which we have extracted above, only records the

submissions of the counsel for the parties. It does not reflect the decision

of the Division Bench or opinion of the Division Bench. Insofar as the

paragraph 8 of the Division Bench's order is concerned, it only notes that

contention that the Appellate Court is competent to frame additional

issues, as also record evidence thereon. This, of course, is a course which

the Division Bench did not adopt inasmuch as it remanded the matter to

the learned Single Judge for framing of additional issues and also for

recording of evidence. However, paragraph 8 of the Division Bench's

order dated 11.02.2010 does record that if an 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 that

issue and also to lead its own evidence.

6. It is in this backdrop that the Division Bench ultimately gave its

opinion and conclusion in paragraph 10 of the said order. On going

through the said paragraph 10 of the order, it is clear that the Division

Bench, having considered all the complexities of the case, was of the

opinion that the proper course to be adopted was 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".

While so remanding the matter, the Division Bench clarified that the

evidence already recorded in the backdrop of the existing issues would

remain efficacious and relevant. Importantly, the Division Bench clearly

directed that the learned Single Judge would be entitled to "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. The expressions which we have placed within quotes clarify the

position that the remand entailed re-appreciation/reappraisal of the

evidence already on record. It did not simply entail appreciation of the

new evidence which was to be recorded. The expression "reappraisal"

means to appraise something which has already been considered on an

earlier round. The expression "fresh judgment" entails that a "new"

judgment in entirety could be rendered by the learned Single Judge. The

learned Single Judge also had the option of affirming the impugned

judgment with additions. In other words, it was open to the learned

Single Judge to render an entirely fresh judgment on all the issues or to

accept the reasoning adopted in the earlier judgment with additions in

respect of the additional issues. It was further clarified by the learned

Division Bench that the remand would not have the effect of setting aside

the impugned judgment. Had this clarification not been given by the

Division Bench, then it would not be open to the learned Single Judge to

adopt the reasoning of the earlier impugned judgment. Since the Division

Bench gave the option to the learned Single Judge to even affirm the

earlier reasoning, it became necessary for the Division Bench to clarify

that the remand would not have the effect of setting aside the impugned

judgment. This is also because the Division Bench had not considered

the matter on merits and, therefore, the remand ought not to be construed

as negating the reasoning adopted by the learned Single Judge in the

judgment which was impugned in the said RFA (OS) 27/1980.

7. It is for these reasons that we do not agree with the submissions

made by the learned counsel for the appellant. We are in complete

agreement with the view taken by the learned Single Judge in the

impugned order dated 26.02.2015.

8. Consequently, the appeal is dismissed. There shall be no order as

to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J JULY 21, 2015/st