Punjab-Haryana High Court
Priya Diwan vs Brig Manohar Lal Kataria And Anr on 5 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:048138
SAO-16-2023 (O&M) 1 2024:PHHC:048138
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-16-2023 (O&M)
Reserved on: 16.02.2024
Date of decision:05.04.2024
Priya Diwan
....Appellant
Versus
Manohar Lal Kataria and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. V.K.Jindal, Sr. Advocate with
Mr. Amandeep Vashisht and
Mr.Pankaj Gautam, Advocates for the appellant
Mr. Kanwaljit Singh, Sr. Advocate with
Mr. Ramesh Kumar Bamal, Advocate and
Mr. Amit Jain, Advocate for
for respondent no.1
Mr. Parminder Singh Kanwar and
Ms.Aashna Gill, Advocate for respondent no.2-
UT, Chandigarh
ANIL KSHETARPAL, J
1.Brief facts of the case
1.1 The defendant no.1 has filed this Second Appeal against
order to challenge the correctness of the remand order passed by the
First Appellate Court directing the trial court to frame the most
important issue with respect to the Will propounded by the plaintiff and
thereafter, decide the matter afresh.
1.2 In order to comprehend the issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
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1.3 Late Sh.Sudarshan Kumar Kataria was owner of plot no.68,
Sector 16-A, Chandigarh. He was residing in United Kingdom. The
plaintiff late Brig.Manohar Lal Kataria claims the property on the basis
of two Wills allegedly executed by late Sh.Sudarshan Kumar Kataria in
February, 2005 and 26.10.2005 whereas the appellant (defendant no.1)
Dr. Priya Diwan is the daughter of late Sh.Sudarshan Kumar Kataria.
She claims the property on the basis of natural manner of succession i.e
intestate succession.
2. Issues framed by the trial court and its decision:-
2.1 From the pleadings of both the parties, the following issues
were framed by the trial court:-
"1. Whether the plaintiff is entitled for
declaration as prayed for? OPP.
2. If issue No.1 is proved in affirmative,
whether the plaintiff is entitled for mandatory injunction as
prayed for? OPP.
3. Whether the suit is bad for want of notice
u/S 80 CPC? OPD.
4. Whether the suit filed by the plaintiff is
wholly misconceived?OPD.
5. Relief."
2.2 The plaintiff's suit was dismissed by the trial court vide
judgment dated 03.07.2018, against which the plaintiff filed an appeal.
The First Appellate Court has remitted the case back to the trial court
with direction to frame proper issues with regard to the Wills and record
fresh finding on issue no.3.
3. Arguments put forth by the learned counsel representing the
parties:-
3.1 Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
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3.2 Learned senior counsel representing the appellant
(defendant no.1) has submitted as under:-
i) The order of remand is erroneous because there is
non-compliance of Order XLI Rule 23, Rule 23-A
and Rule 24 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC')
ii) The plaintiff cannot be allowed to fill up the lacunas
in his case by obtaining an order of remand.
iii) It is not permissible to invoke the provisions of
remand in routine and imprudent manner.
iv) In a situation where it is coherent that the non-
framing of distinct issue would not vitiate the trial,
particularly when the plaintiff knew their case, the
order of remand is not justified.
3.3 On the other hand, the learned counsel representing the
respondents submits that as per Order XIV Rule 1 CPC, the court was
required to frame a distinct and separate issue on each material
proposition affirmed by one party and denied by other. He submits that
the plaintiff has propounded the Will, which is denied by defendant no.1.
Hence, the court was required to frame a distinct and separate issue
allowing the plaintiff to lead evidence in support of his contention.
4. Discussion by this Court:-
4.1 This Court has considered the submissions made by the
learned counsel representing the parties.
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4.2 In fact, the vital issue between the parties is with respect to
the correctness and validity of the two Wills allegedly executed by late
Sh.Sudarshan Kumar Kataria, in February, 2005 and 26.10.2005. The
Will dated 26.10.2005 is an exact duplicate of the Will executed in
February, 2005 which is authenticated by Consulate General of India,
apart from being attested by two witnesses. The Will dated 26.10.2005,
is notarized, recorded and embossed by the Chandigarh Administration.
4.3 Unequivocally, Order XIV Rule 1 CPC mandates the court
to settle issues when a material proposition of fact or law is affirmed by
one party and denied by the other party. According to this provision,
each material proposition affirmed by one party and denied by the other
shall be made a distinct issue while framing the issues. In this case, the
trial court overlooked the mandatory provision enshrined in Order XIV
Rule 1 CPC. There is a likelihood of prejudice to the plaintiff if a
distinct issue with respect to the validity of Will is not framed. In these
circumstances, the First Appellate Court found it appropriate to remand
the case back to the trial court for decision afresh.
4.4 With reference to the first submission put forth by the
learned counsel representing the appellant, it may be noted that Order
XLI Rule 23-A CPC permits the appellate court to pass an order of
remanding the case back to the trial court when the decree is reversed in
appeal and retrial is considered necessary. In this case, it has been found
by the First Appellate Court that the plaintiff did not examine one
attesting witness, which is mandatory under Section 68 of the Indian
Evidence Act, 1872. The First Appellate Court while deciding the
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matter came to the conclusion that this may have happened due to the
failure of the trial court to frame distinct issue with regard to the validity
of Will. In these circumstances, the First Appellate Court has formed an
opinion that a retrial is considered necessary. Thus, the second part of
Order XLI Rule 23-A CPC has been fulfilled. With regard to the first
part of Order XLI Rule 23-A CPC, it may be noted that the trial court
decided the suit without framing the most important issue, which arose
between the parties. Thus, the First Appellate Court has reversed the
judgment and decree passed by the trial court. Order XLI Rule 24 CPC
enables the Appellate court to finally decide the case where the evidence
on record is sufficient. It is significant to note that Order XLI Rule 24
CPC is applicable only if the appellate court, after re-settling the issues,
came to the conclusion that the evidence, which has already been led is
sufficient to enable the appellate court to pronounce the judgment. In
this case, as already noticed, the First Appellate Court has found it
appropriate to remand the matter back to the trial court because none of
the attesting witnesses of both the Wills have been examined and
evidence on the record has been found insufficient.
4.5 The second argument of the learned counsel representing
the appellant lacks substance because trial court failed to settle the
proper issues arising between the parties, hence, proper issues were not
culled out. In order to give proper opportunity to both the parties to lead
evidence, the appellate court has directed the trial court to identify a
distinct issue on the validity and genuineness of the Will executed in
February, 2005 and 26.10.2005. Hence, it is crystal clear that the First
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Appellate Court by using it's judicial wisdom and in accordance with
law remanded the case back to the trial court and it has not been done to
permit the plaintiff to fill the lacunas in his case.
4.6 In support of his submission no.3, the learned senior
counsel has relied upon the recent judgment passed by the Supreme
Court in Shiva Kumar and others vs.Sharanabasappa and others
(2021) 11 SCC 277. This Court has carefully read the aforesaid
judgment. In that case, the Supreme Court found that the parties have
adduced all their relevant evidence and the appellants have not been
denied any opportunity to produce any particular evidence. It was in
that context the Supreme Court declared that the order of remand may
not be passed in a routine manner. The facts of the case at hand are
wholly different. At the cost of repetition, the trial court has failed to
frame proper issues arising between the parties and failed to adjudicate
upon the important issue, which arose in the suit. Hence, the impugned
order passed by the First Appellate Court remanding the case back to the
trial court is not reckless and imprudent and it has not been passed in a
casual manner.
4.7 The last submission of the learned counsel representing the
appellant also lacks substance. As per Order XIV Rule 1 CPC the duty
is cast upon the court to frame proper issues with respect to each
material proposition affirmed by one party and denied by the other. In
this case, the basic and fundamental issue between the parties was not
identified by the trial court.
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4.8 In these circumstances, it results in vitiating the trial of the
suit. Hence, the judgment relied upon by the learned counsel
representing the appellant is not applicable to the facts of the present
case.
5. Decision:-
5.1 Keeping in view the aforesaid discussion, this Court is of
the considered opinion that the impugned order passed by the First
Appellate Court does not warrant any interference. Hence, the appeal is
dismissed.
5.2 All the pending miscellaneous applications, if any, are also
disposed of.
05.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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