Yashpal Khanna vs Ravinder Nath Since Deceased ...
2022 Latest Caselaw 1764 P&H

                      112
                                IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                                                    CHANDIGARH



                                                             SAO No.17 of 2017 (O&M)
                                                             DATE OF DECISION : 17.03.2022


                      Yashpal Khanna                                         .....Appellant

                                                         Versus


                      Ravinder Nath now deceased through LRs and Others
                                                                                 .....Respondents



                      CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                      Present :     Mr. R.S. Bajaj, Advocate for the appellant
                                         ..

ALKA SARIN, J. (Oral):

Heard in hybrid mode.

CM-3009-CII-2022:

This is an application for extension of the interim order

granted by this Court vide order dated 22.02.2017.

Notice of the application.

Mr. Manish Kumar Singla, Advocate, who is present in

Court, accepts notice on behalf of the non-applicant/legal representative

No.(i) of respondent No.1 namely Virender Mayor while Mr. R.S. Bains,

Senior Advocate assisted by Ms. Aarushi Garg, Advocate has put in

appearance through video conferencing, representing the non- PARKASH CHAND 2022.03.18 03:30 I attest to the accuracy and authenticity of this document

applicant/legal representative of respondent No.1(ii) namely Dr. Geeta

Mayor.

Learned counsel for the parties are ad idem that instead of

adjudicating upon the present application, the main case itself may be

decided. With the consent of the learned counsel, the main case is taken

on board today itself.

CM disposed off.

SAO-17-2017:

The present appeal has been filed challenging the order dated

29.08.2016 whereby the lower Appellate Court has not set aside the

findings on the issues returned by the Trial Court and instead, after

framing additional issue No.2A, has remanded the entire case for deciding

it afresh by the Trial Court. Issue No.2A, framed by the lower Appellate

Court, is reproduced as under :

"Issue No.2A: Whether the plaintiff is entitled to the

relief of recovery of market value of the suit property

as prayed for ? ...OPP"

Learned counsel for the appellant would contend that the

lower Appellate Court after framing of the additional issue, as per

provisions of Order 41 Rule 25 of the Code of Civil Procedure, 1908

(CPC), could have remanded the matter to a limited extent to the Trial

Court i.e. for recording of additional evidence on the said issue and for

returning a finding on the same.

Per contra, learned counsel for the respondents have

vehemently contended that there is no ground for interference in the PARKASH CHAND 2022.03.18 03:30 I attest to the accuracy and authenticity of this document

impugned order in as much as a fresh decision would be required on the

merits of the case in view of additional Issue No.2A which has been

framed by the lower Appellate Court.

Heard.

Order 41 CPC pertains to appeals from original decrees and

Rule 25 thereof reads as under :

"25. Where Appellate Court may frame issues and

refer them for trial to Court whose decree appealed

from - Where the Court from whose decree the appeal

is preferred has omitted to frame or try any issue, or

to determine any question of fact, which appears to

the Appellate Court essential to the right decision of

the suit upon the merits, the Appellate Court may, if

necessary, frame issues, and refer the same for trial to

the Court from whose decree the appeal is preferred

and in such case shall direct such Court to take the

additional evidence required;

and such Court shall proceed to try such issues, and

shall return the evidence to the Appellate Court

together with its findings thereon and the reasons

therefor within such time as may be fixed by the

Appellate Court or extended by it from time to time."

A perusal of the above reproduced Order 41 Rule 25 CPC

clearly reveals that the lower Appellate Court can frame an additional

issue and thereafter would have to refer the same for trial to the Court PARKASH CHAND 2022.03.18 03:30 I attest to the accuracy and authenticity of this document

from whose decree the appeal is preferred. In the present case, the

procedure as laid down in Order 41 Rule 25 CPC has not been followed.

Rather, the entire judgment and decree passed by the Trial Court has been

set aside and the matter has been remanded for a fresh decision on merits.

The lower Appellate Court without setting aside the findings recorded by

the Trial Court could not have set aside the judgment and decree in its

entirety. The correct procedure to have been followed was as laid down in

Order 41 Rule 25 CPC.

In view of the above, the present appeal is allowed and the

impugned order of the lower Appellate Court is modified to the extent

that the matter would be referred to the Trial Court only to the limited

extent of taking additional evidence qua the freshly framed issue, if

required, and to try the freshly framed issue. The report shall thereafter be

sent to the lower Appellate Court which shall decide the appeal in

accordance with law.

Parties to appear before the Trial Court on 23.03.2022.

Pending applications, if any, also stand disposed off.

(ALKA SARIN) JUDGE 17.03.2022 parkash

NOTE:

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

PARKASH CHAND 2022.03.18 03:30 I attest to the accuracy and authenticity of this document