Himachal Pradesh High Court
Decided On: 06.08.2024 vs Smt. Indira And Another on 6 August, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:6468
3IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 95 of 2020
Decided on: 06.08.2024
.
Smt. Ram Pyari alias Asha ....Appellant
Versus
Smt. Indira and another ...Respondent
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellants : Mr. Vipin Pandit, Advocate.
For the respondents :
Mr. Sudhir Thakur, Senior Advocate
rwith Mr. Karun Negi, Advocate.
Ajay Mohan Goel, Judge (Oral)
Heard. Admit on the following substantial questions of
law:-
Whether the judgment and decree passed by learned
First Appellate Court is not sustainable and is perverse
as the same has been passed without returning any
findings on the additional Issues in terms of the
judgment passed by this Court in FAO No. 127 of
2014?
2. With the consent of learned Counsel for the parties,
the appeal has been taken up for final consideration today itself.
1 Whether reporters of the local papers may be allowed to see the judgment?
2024:HHC:6468
3. Brief facts necessary for the adjudication of the present
appeal are that the respondents/plaintiffs filed a suit for
.
permanent and mandatory injunction against the appellants/
defendants which was decreed.
4. Feeling aggrieved, the appellants herein preferred an
appeal. In the course of the adjudication of the said appeal,
learned Appellate Court reframed certain Issues and thereafter,
set aside the judgment and decree passed by the learned Trial
Court and remanded the case back to the learned Trial Court for
adjudication afresh. Feeling aggrieved, the plaintiff filed an FAO
before this Court, which was disposed of by this Court on
22.09.2016 in the following terms:-
"3. As such, operative portion of the order, insofar as
it directs remand of the case to the trial Court, is
quashed and set aside with the following directions:
(i) The Appellate Court shall decide the Issues by
allowing the parties to lead evidence within a time
bound period.
(ii) Parties undertake to appear before the Appellate
Court on 20.10.2016.
(iii). Parties undertake to fully cooperate and except
for the official witnesses, produce the
evidence/witnesses at their own responsibility.
(iv). Hearing is expedited.
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(v) An endeavour shall be made by the Appellate
Court to decide the matter on or before 31.03.2017."
4. Thereafter, learned First Appellate Court has dismissed
.
the appeal of the present appellants in terms of the impugned
judgment and decree dated 14.11.2019. This appeal was admitted
today on the following substantial question of law:
Whether the judgment and decree passed by learned
First Appellate Court is not sustainable and is perverse
as the same has been passed without returning any
findings on the additional Issues in terms of the
judgment passed by this Court in FAO No. 127 of
2014?
5. Learned Counsel for the appellants has submitted that
despite the direction of this Court to decide the Additional Issues,
after granting opportunity to the parties to lead evidence, learned
Appellate Court has erred in dismissing the appeal of the
appellant without returning any findings on the reframed Issues.
6. On the other hand, learned Senior Counsel appearing
for the respondents has drawn the attention of the Court to the
judgment and decree passed by learned Appellate Court and by
referring to para 13 onwards thereof, he submitted that learned
Appellate Court has taken into consideration the directions passed
2024:HHC:6468
by this Court in FAO No. 127 of 2014 and after referring to the
reframed issues, it has passed the judgment and decree and thus,
.
there is nothing wrong in the judgment and decree passed by
learned Appellate Court and present appeal deserves to be
dismissed.
7. I have heard learned Counsel for the parties and
carefully gone through the judgment and decree passed by learned
District Judge, dated 14.11.2019.
8. In terms of the directions that were passed by this
Court in FAO No. 127 of 2014, dated 22.09.2016, after quashing
the order of remand passed by learned First Appellate Court, this
Court directed the learned Appellate Court to decide the Issues by
allowing the parties to lead evidence within a time bond period. A
perusal of the judgment under challenge demonstrates that in
paras 15 and 16 thereof, it has been observed by the learned First
Appellate Court that in terms of the direction that was passed by
this Court in FAO No. 127 of 2014, the parties were put to re-trial
on the Issues re-framed by this Court on 24.01.2014. The plaintiff
did not adduce any additional evidence in support of the
additional Issues whereas the defendants examined 8 witnesses,
details whereof are given in para 16 of the said judgment.
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However, thereafter a perusal of the impugned judgment and
decree demonstrates that there is no reference to the re-framed
.
Issues nor any findings were returned as to in whose favour said
re-framed issues were decided by learned Appellate Court. The
appeal was decided as if learned Appellate Court was adjudicating
upon the first appeal preferred against the judgment and decree
passed by learned Trial Court and as if there were no re-framed
Issues before it and no directions of the High Court to decide the
said re-framed Issues. Accordingly, in the light of above
observations, the judgment and decree passed by learned First
Appellant Court is not sustainable in law. Substantial questions of
law is answered accordingly and the judgment and decree passed
by learned First Appellate Court, which is impugned before this
Court by way of this appeal, is quashed and set aside and the
matter is remanded back to the learned First Appellate Court with
a direction to decide the same strictly in the letter and spirit of the
judgment passed by this court in FAO No. 127 of 2014, dated
22.09.2016.
9. As the opportunity to lead evidence has already been
granted to the parties, no opportunity for adducing evidence shall
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be given to the parties and learned Appellate Court shall proceed
with the case from the arguments stage.
.
10. Parties through Counsel are directed to appear before
learned First Appellate Court on 20.08.2024 and learned Appellate
Court is directed to conclude the trial as expeditiously as possible
but not later than 31.10.2024.
Registry is directed to forthwith return the record of
the case to the learned Court below. Pending miscellaneous
application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel)
Judge
August 06, 2024
(narender)
