Jarnail Singh (Since Deceased) ... vs Laik Ram And Others
2022 Latest Caselaw 17388 P&H

                     112

                                  IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                                                      CHANDIGARH



                                                                SAO No.41 of 2022 (O&M)
                                                                DATE OF DECISION : 21.12.2022



                     Jarnail Singh (since deceased) through his legal heirs             .....Appellants


                                                            versus

                     Laik Ram and Others                                              .....Respondents



                     CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                     Present :         Mr. Dhruv Chowfla, Advocate for the appellants
                                            ..


                     ALKA SARIN, J. (Oral)

The present appeal has been preferred against the order dated

22.12.2021 passed by the lower Appellate Court whereby the suit has been

remanded to the Trial Court for decision afresh in view of the fact that an

error patent on the face of the record was committed by the Trial Court in

as much as the suit was decided on the basis of the issues framed by the

Trial Court on 22.02.2013 and not on the basis of the issues framed

subsequently by the Trial Court on 28.09.2015. The issues framed on

22.02.2013 read as under :

1. Whether the plaintiff is entitled for declaration, as

prayed for? OPP

PARKASH CHAND 2022.12.22 14:12 I attest to the accuracy and authenticity of this order/judgment.

2. Whether the plaintiff is entitled for permanent

injunction, as prayed for? OPP

3. Whether the plaintiff is entitled for mandatory

injunction, as prayed for? OPP

4. Whether the suit of the plaintiff is not

maintainable? OPD

5. Relief.

The issues framed thereafter on 28.09.2015 are also reproduced hereunder :

1. Whether plaintiffs are entitled for declaration, as

prayed for? OPP

2. Whether plaintiffs are entitled for permanent

injunction, as prayed for? OPP

3. Whether plaintiffs are entitled for mandatory

injunction, as prayed for? OPP

4. Whether present suit is not maintainable? OPD

5. Whether plaintiffs have no locus standi and cause

of action to file the present suit? OPD

6. Whether suit is not valued for the purpose of court

fee and jurisdiction? OPD

7. Whether present suit is liable to be dismissed for

want of notice before filing the present suit? OPD

8. Relief.

The lower Appellate Court, noticing the error, rightly

remanded the matter to the Trial Court for deciding afresh. While

PARKASH CHAND 2022.12.22 14:12 I attest to the accuracy and authenticity of this order/judgment.

remanding the case, the lower Appellate Court has clarified that in case the

Trial Court feels any need to frame an issue in respect of the Will it may do

so and take additional evidence, if so required.

The learned counsel for the appellants contends that the

appellants are aggrieved against the clarification made by the lower

Appellate Court giving liberty to the Trial Court to frame an additional

issue and take additional evidence, if so required, regarding the Will. The

learned counsel would further contend that the provisions of Order 41 Rule

25 of the Code of Civil Procedure, 1908 (CPC) have not been complied

with.

Heard.

In the present case the question of complying with the

provisions of Order 41 Rule 25 CPC would not arise in as much as the

error committed by the Trial Court by deciding the suit on the issues

framed on 22.02.2013 is apparent on the face of the record whereas,

admittedly, fresh issues were framed by the Trial Court on 28.09.2015

which have not been touched upon by the Trial Court while deciding the

suit. In view of the said fact, the matter has rightly been remanded by the

lower Appellate Court and the impugned order cannot be faulted with.

Moreover, while remanding the matter it has been clarified that in case the

Trial Court feels any need to frame an issue in respect of the Will it may do

so and may also take additional evidence, if so required. No fault can be

found with the said observation as no specific issue has been framed qua

the Will.

PARKASH CHAND 2022.12.22 14:12 I attest to the accuracy and authenticity of this order/judgment.

In view of the above, I do not find any illegality or infirmity in

the order passed by the lower Appellate Court. The appeal which is devoid

of any merit is accordingly dismissed. Pending applications, if any, also

stand disposed off.

                     21.12.2022                                                          (ALKA SARIN)
                     parkash                                                                JUDGE




                                              NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

PARKASH CHAND 2022.12.22 14:12 I attest to the accuracy and authenticity of this order/judgment.