Hajari Chand Mishra vs Pramod Mittal Through Lrs And Anr
2021 Latest Caselaw 3804 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

           S.B. Civil Miscellaneous Appeal No. 5808/2017

Hajari Chand Mishra S/o Shri Prakash Chand Mishra, R/o 89,
Sirah Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,
Jaipur                                                            ----Appellant
                                   Versus
1.       Pramod Mittal S/o Shri Keshav Dev Mittal, R/o 89, Sirah
         Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,
         Jaipur Died During Appeal
2.       Madhu Mittal W/o Late Shri Pramod Mittal
3.       Vinit Mittal S/o Late Shri Pramod Mittal, R/o 89, Sirah
         Dyodi Dispensary, Sirah Dayasodi Bajar, Chodi Sarhad,
         Jaipur
4.       Tanuja W/o Shri Sanjay Garg, D/o Late Shri Pramod
         Mittal, R/o 196, Madhopuria Ka Chok, Deenanath Ji Ki
         Gali, Chandpole Bazar, Jaipur
5.       Sneha W/o Shri Nitesh D/o Late Shri Pramod Mittal, R/o
         27A, Shri Krishna Vihar, Mansarovar, Jaipur
6.       Trapti W/o Shri Abhay Agarwal D/o Late Shri Pramod
         Mittal, R/o Arya Samaj Mandir K Pass, Gangapur City,
         Distt. Sawaimadhopur, Raj.
7.       Smt. Anita W/o Shri Gordhan Agarwal D/o Late Shri
         Pramod Mittal, R/o New Indrapuri Colony, Bharampuri,
         Jaipur                                                 ----Respondents

For Appellant(s) : Mr.Abhimanyu Singh, Adv.

For Respondent(s)        :     Mr.Kapil Gupta, Adv.
                               Mr.R.S.Sinsinwar, Adv.
                               Mr.Dharmendar Kumar, Adv.


          HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
                                    Order

17/08/2021

This misc. appeal has been filed by the appellant-plaintiff

challenging the order dated 06.10.2017, passed in First Appeal

No.04/2015 decided by ADJ No.9, Jaipur Metropolitan, Jaipur.

(2 of 7) [CMA-5808/2017]

The appeal was filed by the respondents challenging the

judgment and decree dated 21.02.2015 passed in favour of the

appellant.

The Appellate Court by the impugned order has held that the

Court below had failed to frame an important issue in the suit and

by framing an additional issue, the Appellate Court quashed and

set aside the judgment and decree dated 21.02.2015 and the

matter was remanded back to the Trial Court by framing new issue

as issue No.1 and both the parties were directed to lead oral and

documentary evidence before the Trial Court and further the

finding was again required to be given by the Trial court on issue

Nos.1, 2, 4 & 7 as were originally framed by the Trial Court. The

Appellate Court had also directed the Trial Court to decide the suit

within one year.

The appellant feeling aggrieved against quashing of

judgment and decree passed in his favour, assails the impugned

order, primarily on the ground of violation of Order 41 Rule 25

CPC.

Learned counsel appearing for the appellant submitted that if

the Appellate Court had come to the conclusion that an important

issue was not framed by the Trial Court, the Appellate Court had

power to frame an additional issue and to that extent, the matter

could have been remanded back by taking fresh evidence on the

newly framed issue and then the matter was required to be sent

back to the Appellate Court for deciding the appeal afresh.

Learned counsel submitted that the Appellate Court has

committed an error in quashing and set aside the entire judgment

and decree dated 21.02.2015 and further wrongly gave direction

to decide issue Nos.1, 2, 4 & 7 afresh.

(3 of 7) [CMA-5808/2017]

Learned counsel submitted that the power of the Appellate

Court in framing issue and then refer them for Trial to the Civil

Court, is very well defined under Order 41 Rule 25 CPC and the

Appellate Court without considering the relevant provision of law,

has passed the order.

Learned counsel for the appellant submitted that the entire

reading of the impugned order dated 06.07.2017, is based on the

ground that an important issue was left out and the same was

required to be framed as an additional issue and evidence on the

same issue, could be collected by the Trial Court.

Learned counsel submitted that there was no basis to ask for

findings on the issues, which were already decided as issue Nos.1,

2, 4 & 7 by the Trial Court.

Learned counsel Mr.Kapil Gupta appearing on behalf of the

respondents submitted that no error has been committed by the

Appellate Court in passing the order of remanding the matter back

by the Appellate Court to the Trial Court and further the finding on

issues No.1, 2, 4 & 7 is required to be given again in view of

additional issue, which has been framed by the Appellate Court.

Learned counsel submitted that there will be inconsistent

finding on issue Nos.1, 2, 4 & 7 if maintained, as was passed in

the original judgment and decree.

Learned counsel submitted that once the additional issue is

to be decided again by the Trial Court, necessarily the other

connected issues, needs separate finding by the Trial Court again.

Learned counsel further submitted that the Appellate Court

has exercised its power by permitting to lead evidence on the

newly framed additional issue only and as such no direction has

(4 of 7) [CMA-5808/2017]

been given to lead fresh evidence on the issues, which were

already framed and decided.

Learned counsel submitted that the Appellate Court has not

given any power to the Trial Court to take evidence again on all

the issues and as such the appellant has come before this Court

on apprehensions.

Learned counsel further submitted that the judgment and

decree dated 21.02.2015 was required to be set aside in toto

otherwise the findings, which would be recorded on additional

issue, can run contrarily to the findings, which were already

recorded.

Learned counsel further submitted that there was no interim

order passed by this Court while issuing notices in the present

appeal and as such the Trial Court has proceeded further with the

matter and as such after lapse of four years, this Court may not

interfere in the present matter.

Learned counsel for the appellant submitted that record of

the Trial Court was summoned by this Court vide order dated

08.02.2019 and as such the matter has not proceeded after

remand and as such this Court is required to adjudicate the

matter on merits.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court finds that the Appellate Court while allowing the

appeal of the respondents has based its finding only on one

ground that an important issue was required to be framed by the

Trial Court and since the additional issue was to be adjudicated

between the parties after taking an evidence accordingly, the

(5 of 7) [CMA-5808/2017]

Appellate Court framed the same additional issue and decided to

remand the matter back.

There is no doubt about the power of the Appellate Court to

frame additional issue, if it finds that the real question in the suit

is required to be determined by framing of issue and such issue is

essential to the right decision of the suit and the Appellate Court

can frame such issue.

This Court further finds that as per power given under Order

41 Rule 25 after framing an additional issue, the Appellate Court

can refer/remand the same for Trial to the Court from whose the

appeal is preferred and can also direct such Court to take such

additional evidence, which is required for deciding the additional

issue.

This Court finds that as per power provided to the Appellate

Court under Order 41 Rule 25 when additional issue is framed and

the matter is referred back to the Trial Court, such Court has to

try the Additional issue, which is framed by the Appellate Court

and then it is required to return the evidence to the Appellate

Court together with the findings and reasons therefore.

This Court in the present facts of the case, finds that the

Appellate Court has framed the additional issue and has further

directed the parties to lead evidence before the Trial Court,

however, the case has been directed to be decided by the

Appellate Court by giving direction to the Civil Court that it has to

give findings again on issue Nos.1, 2, 4 & 7.

This Court finds that once findings were already recorded on

these issues, there was no occasion to direct the Civil Court to

give decision on the merits on these issues again.

(6 of 7) [CMA-5808/2017]

The Appellate Court was partly right while passing the order

that evidence may be led by both the parties in respect of

additional issue, which was framed, however, direction to give

findings on the already decided issue is not correct interpretation

of Order 41 Rule 25.

The submission made by learned counsel for the respondents

that the findings on issues Nos.1, 2, 4 & 7 are required again in

view of the additional issue framed by the Appellate Court as the

finding on newly framed issue and findings on issue Nos.1, 2, 4 &

7 can run contrary to each other, suffice it to say by this Court

that if additional issue is framed, then the Trial Court will take

evidence on the said issue and will return its finding with reasons

to the Appellate Court.

It is for the Appellate Court to take a final view of the matter

after evidence is recorded by the Trial Court on additional issue

and the Appellate Court in such background of the matter, will

decide as whether the appeal of the respondents is to be allowed

or decided other way round.

The submission of learned counsel for the respondents that

the time has already elapsed for more than four years and as such

this Court may not interfere at this stage, suffice it to say that if

time bound direction has been given to the Trial Court to decide

the additional issue, things can be proceeded as per law and as

per power given to the Courts including the Appellate Court and

Civil Court.

Accordingly, this Court finds that the order dated 06.10.2017

is required to be quashed to the extent that it gives power to the

Civil Court to give findings on issues Nos.1, 2, 4 & 7 and this Court

maintains the order of the Appellate Court to the extent of framing

(7 of 7) [CMA-5808/2017]

additional issue and directing the Civil Court to take evidence of

both the parties on the newly framed issue and further the

findings of the said issue are required to be returned back to the

Appellate Court.

This Court considering the nature of dispute between the

parties, deems it proper to grant three months' time to the

Appellate Court to take evidence on the newly framed issue and

immediately after recording evidence, the findings be sent to the

Appellate Court and the Appellate Court on receiving such finding,

will decide the appeal afresh after taking into consideration the

relevant facts and law.

The observations made by this Court in the present appeal

will not have any bearing on the proceedings, which are continued

before the Civil Court and the Appellate Court.

Accordingly, the present appeal stands disposed of.

(ASHOK KUMAR GAUR),J

Monika/Ramesh Vaishnav

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