Rajasthan High Court
Abdul Saeed vs Iqbal And Another on 20 November, 2021
Bench: Sanjeev Prakash Sharma
(1 of 3) [CMA-1638/2010]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No.1638/2010
Abdul Saeed son of Shri Jahur Khan, resident of Dashhara
Maidan, Gangapurcity.
----Appellant
Versus
1. Iqbal son of Shri Nasruddin, resident of Chand Colony,
Gangapurcity.
2. Afzal son of Shri Nasruddin, resident of Chand Colony,
Gangapurcity.
----Respondent
For Appellant(s) : Mr. Manoj Bhardwaj
For Respondent(s) : Mr. Harshad Kapoor for Mr. Rajesh
Kapoor
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
20/11/2021
1. Learned counsel appearing for the appellant submits that
learned trial court while deciding the suit passed the judgment
and decree dated 03.02.2007 holding that the agreement could
not be relied upon and was not admissible in evidence as it was
not registered and also further held that the suit was barred by
limitation to which an appeal was preferred by the respondents--
plaintiffs before the court of Ld. Additional District Judge,
Gangapur City who has passed the impugned judgment dated
20.05.2010 and remanded the case to the trial court solely on the
aspect regarding the document being required to be registered or
not. Learned counsel submits that the remand order is patently
erroneous and illegal as it does not take into consideration the
(2 of 3) [CMA-1638/2010]
other findings which have already been recorded by the trial court
specially relating to limitation. Learned counsel submits that if a
finding relating to limitation is read as against the plaintiff, the
case for remand could not have been made on other issues since
the suit itself would stand rejected on the ground of limitation.
2. Per contra, learned counsel appearing for the plaintiffs--
respondents submits that in the appeal preferred by him he had
raised both the aspects firstly, issue regarding registration of
agreement and secondly, also the findings arrived at on the issue
of limitation. He submits that the cause of action arose in the year
1994 and therefore, the suit was within limitation. He submits that
the court has failed to take notice of the said aspect and
accordingly, he submits that the matter should be either
remanded to the trial court on both the aspects or even the
Appellate Court could decide both the issues at its own level.
3. Learned counsel appearing for the appellant-defendant does
not have any objection if the case is decided on merits by the
Appellate Court on both the issues instead of remanding the
matter to the trial court.
4. I have considered the submissions.
5. While deciding an appeal, the Court has to examine all the
issues which are contested between the parties. The appeal is a
right of an individual and therefore the Appellate Court is required
to decide the cases with a fresh approach on all the issues.
However, it appears that the Appellate Court has not exercised the
jurisdiction which is vested in it and has failed to take notice of all
the issues which were raised in appeal and contested by the
defendant--appellant.
(3 of 3) [CMA-1638/2010]
6. Keeping in view thereto, the order passed by the Appellate
Court dated 20.05.2010 remanding the suit solely for disposal of
the case relating to issue regarding registration is set aside. It is
further directed that the Appellate Court shall hear both the
parties and decide all the issues which are raised both by the
appellants therein (herein "respondents") as well as present
appellant (therein "respondent").
7. Looking into the nature of the case and the long pendency
thereto, it is expected that the appeal itself shall be decided
expeditiously preferably within a period of six months. The interim
order relating to status-quo shall be maintained till disposal.
8. The civil misc. appeal is accordingly disposed of.
9. Registrar (Judicial) is directed to send the record back to the
concerned court.
(SANJEEV PRAKASH SHARMA),J
Karan/49
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