______________________________________________________________________ vs Neelam Kumari
2021 Latest Caselaw 1298 HP

           IN THE HIGH COURT OF HIMACHAL PRADESH,
                           SHIMLA

                                                                            RSA No.327 of 2019




                                                                                     .
                                                           Date of Decision: 25.02.2021





    ______________________________________________________________________
    Jagdish Ram and others                                                              .....Appellants





                                         Versus


    Neelam Kumari                                                                       ..... Respondent
    ______________________________________________________________________





    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1

    For the Appellants:                   Mr. Sunny Modgil, Advocate.

    For the Respondent:                  Mr. Dheeraj K. Vashisht, Advocate.

    Sandeep Sharma, Judge (oral):

Instant Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure lays challenge to the judgment and decree

dated 9.4.2019 passed by learned Additional District Judge -II, Una,

District Una, Himachal Pradesh in Civil Appeal No.143 of 2017,

affirming the judgment and decree dated 18.09.2017 passed by

learned Senior Civil Judge, Court No.1, Una, District Una, Himachal

Pradesh in civil Suit No.3 of 2005, whereby suit for permanent

prohibitory injunction having been filed by the respondent/plaintiff

came to be decreed.

Whether the reporters of the local papers may be allowed to see the judgment?

2. Precisely, the challenge to judgment rendered by learned

First Appeal Court is on the ground that before passing the impugned

judgment, Court below has failed to decide two pending applications

.

filed under Order 41 Rule 27 CPC and under Order 41 Rule 25 CPC,

respectively.

3. Mr. Dheeraj K. Vashisht, Advocate has put in appearance

on behalf of the respondent/plaintiff. He fairly states that though

there is specific mention with regard to aforesaid applications in the

impugned judgment passed by learned First Appellate Court, but the

same have been admittedly not decided by the court below before

passing the final judgment. Otherwise also, perusal of record of

learned Court below itself suggests that court below has not decided

the aforesaid applications before passing final judgment.

4. Accordingly, in view of the aforesaid fair stand adopted by

learned counsel representing the respondent/plaintiff, this Court at

this stage without going into the merits of the case, deems it fit to

remand the case back to learned First Appellate Court, enabling it to

decide the aforesaid applications alongwith main appeal i.e. Civil

Appeal No.143 of 2017.

5. Consequently, in view of the above, the judgment and

decree passed by learned Additional District Judge-II, Una, District

Una, H.P. in Civil Appeal No.143 of 2017, titled as Jagdish Ram

and others versus Smt. Neelam Kumari, is quashed and set-aside

and learned First Appellate Court is directed to decide the appeal

.

afresh in terms of the observations made hereinabove. Since, appeal is

pending before the court below for the last three years, this Court

hopes and trust that learned Court below shall make all out efforts to

decide the appeal expeditiously, preferably within a period of three

months from today.

6. Learned counsel representing the parties undertake to

cause presence of their respective clients before the Court below on

8.3.2021, enabling it to do the needful well within stipulated time.

7. The present appeal is disposed of in the aforesaid terms

alongwith pending applications, if any.

(Sandeep Sharma), Judge

25th February,2021 (shankar)