Punjab-Haryana High Court
Hardev Singh And Ors vs Som Nath And Ors on 8 May, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:064580
SAO-50-2017 (O&M)
and other connected cases 1
126 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1.SAO-50-2017 (O&M)
Hardev Singh and others
....Appellants
Versus
Som Nath (since deceased) through his LRs and others
..Respondents
2.SAO-49-2017 (O&M)
Hardev Singh and others
....Appellants
Versus
Som Nath (since deceased) through his LRs and others
..Respondents
3.SAO-66-2017 (O&M)
Hardev Singh and others
....Appellants
Versus
Som Nath (since deceased) through his LRs and others
..Respondents
Date of decision: 08.05.2024
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. S.S.Salar, Advocate for the appellants
Mr.D.S.Malwai, Advocate for respondent no.1(i) to (iv),
2 and 3
ANIL KSHETARPAL, J (Oral)
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Neutral Citation No:=2024:PHHC:064580
SAO-50-2017 (O&M)
1. These three connected Second Appeals against the order
passed by the First Appellate Court remanding the case back to the trial
court shall stand disposed of by a common order.
2. In order to comprehend the issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. The appellants (plaintiffs before the trial court) filed the
first suit for the grant of decree of declaration to the effect that they are
in joint possession of the land measuring 9 bighas 8 biswas and the
defendants have no concern with the suit land. In the aforesaid suit, the
defendants not only filed the written statement but also filed the counter
claim. Subsequently, the plaintiffs filed the second suit no.525 dated
03.08.2006 for declaration regarding order no.9157 dated 11.05.2006
passed by the District Collector, Sangrur on the ground that such order is
null and void and illegal with a consequential relief of permanent
injunction. Both the suits were consolidated. The trial court, by a
consolidated judgment dated 23.02.2015, decreed both the suits filed by
the plaintiffs whereas dismissed the counter claim filed by the
defendants. As many as three appeals were filed before the First
Appellate Court. It was noticed by the First Appellate Court that in the
second suit the issues, which require adjudication, were distinct and
separate from the first suit. However, the trial court neither settled the
issues nor permitted the parties to lead their evidence. The First
Appellate Court also dismissed the counter claim filed by the defendants
in the second suit though such counter claim was never filed. Thus, the
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Neutral Citation No:=2024:PHHC:064580
SAO-50-2017 (O&M)
First Appellate Court remanded the case back to the trial court for fresh
decision.
4. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
5. Learned counsel representing the appellants contends that
the second suit was in fact off shoot of the first suit. Hence, a separate
and distinct issues in the second suit were not required to be framed. He
further submits that the First Appellate Court has erred in remitting the
case back to the trial court rather than seeking report from the trial court
in the second suit.
6. This Court has considered the submissions made by the
learned counsel representing the parties.
7. It is evident that a serious prejudice has been caused to the
defendants as they were not given opportunity to lead evidence in the
connected suit. The second suit was also for the grant of decree of
declaration. It is also evident that the trial court was not even conscious
of the fact that in the second suit the defendants never filed any counter
claim. In these circumstances, the First Appellate Court came to the
conclusion that the matter is required to be remitted back to the trial
court. Order XLI Rule 23A of the Code of Civil Procedure, 1908
enables the appellate court to remit the matter back to the lower court if
the findings of trial court are set aside and fresh decision of the case is
found necessary. In the judgments passed by the First Appellate Court,
the court has noticed that the judgment passed by the trial court suffers
from more than one error, which has resulted in failure of justice.
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Neutral Citation No:=2024:PHHC:064580
SAO-50-2017 (O&M)
8. In view of the aforesaid facts and discussion, this Court
does not find it appropriate to interfere with the judgment passed by the
First Appellate Court.
9. Hence, dismissed.
10. All the pending miscellaneous applications, if any, are also
disposed of.
08.05.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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