It is not disputed that in his remand order Shri Amarbir Singh Gill, the then learned Additional District Judge, did not set aside the findings recorded by the trial court on issues Nos. 1 to 8A. After allowing the application of Phuman Singh he had no doubt remanded the case by setting aside the judgment and the decree of the trial court. The amendment of the written statement by Phuman Singh gave rise to additional Issue No.8B only. The trial court, therefore, was required to return a finding on the said issue alone and not to appraise the entire evidence and give fresh findings on issues Nos. 1 to 8A as the finding on the same had not been reversed or opened for trial by the learned Additional District Judge. In almost similar circumstances in Mohan Lal v. Anandibai and Ors. MANU/SC/0578/1971 : AIR 1971 SC 2177, the final court resolved the question whether on remand the trial court was required to receive evidence and re-decide all the issue when the appellate court had not set aside the findings on those issues with the following observations.
In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by Learned Counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial court and the first appellate court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata and has added that the trial court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise any new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata.
In Fauja Singh and Ors. v. Jaswant Singh 1978 PLR 456 , S.P. Gopal, J. dealt with a similar situation. The first appellate court, without going, into the merits of the findings of the trial court on the issues framed by it, had framed an additional issue in respect of execution and a validity of a Will, set aside the judgment and decree of the trial court and remanded the case for fresh trial and re-decision. After remand to the trial court and objections was raised that the parties could lead evidence only on the additional issue framed by the first appellate court but this objection was overruled by the trial court and it was held that the parties were entitled to lead evidence afresh on all the issues. Following the rule laid down in Mohan Lal's case (supra), it was held that the first appellate court had neither adverted to the findings of the trial court on the issues framed, nor reversed or affirmed them. The findings on these issues could not be said to have been set aside and consequently the case was deemed to have been remanded for fresh trial of the additional issue and redecision of the case.
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 07.05.1987
Appellants: Mangal Singh
Vs.
Respondent: Phuman Singh
Vs.
Respondent: Phuman Singh
Hon'ble Judges/Coram:
Dharam Vir Sehgal , J.
Citation: 1987(1)CivilCC(P&H)
1. This judgment will dispose of S.A.Os. Nos. 28 and 29 of 1986 as both of them arise out of one and the same order dated 9.4.1986 of the learned Additional District Judge, Jalandhar.
2. Mangal Singh and Gurdit Singh are real brothers. They had another brother Partap Singh who was unmarried and died issueless. They filed a suit claiming the property of their deceased brother. On the other hand, Phuman Singh defendant-respondent No. 1, claimed that he is the grand-son of Teja Singh, another brother of the plaintiffs (Mangal Singh and Gurdit Singh) and Partap Singh deceased and that Smt. Malkiat Kaur defendant-respondent No. 4 is his mother; that Partap Singh had executed a Will dated 6.7.1976 in their favour and they had become owners of the property by virtue of the same on the death of Partap Singh and that mutation on that basis had also sanctioned. Malkiat Kaur respondent filed a separate written statement claiming that Partap Singh deceased had executed a Will dated 19.1.1976 exclusively in her favour. Lal Singh defendant-respondent No. 7 also filed a separate written statement claiming that Partap Singh deceased had executed a Will in his favour and as such he had succeeded to his estate. The other defendant-respondents either did not contest the claim in suit or were proceeded against ex-parte.
3. On the pleading of the parties, the following issues were framed by the learned Sub Judge 1st Class, Jalandhar:
1. Whether the plaintiffs are owners in possession of the suit land as L.Rs.. of deceased Partap Singh? OPP2. Whether the plaintiffs are entitled to injunction prayed for? OPP3. Whether Partap Singh deceased executed valid Will dated 16.7.1976 in favour of Phuman Singh defendant No. 1 and Malkiat Kaur defendant No. 2? OPD4. Whether deceased Partap Singh executed a valid Will dated 19.1.1976 in favour of Smt. Malkiat Kaur defendant No. 2? OPD-25. Whether the suit is not maintainable in the present form? OPDS6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD7. Whether the plaintiff has no locus standi to file the present suit? OPD8. Whether the description of the suit property is incorrect? OPD8-A. Whether Partap Singh deceased executed any valid Will in favour of Lal Singh defendant No. 5? If so, its effect? OPD 59.9. Relief.
4. Issues Nos. 1 and 2 were decided in favour of the plaintiffs while issues Nos. 3 to 8A were decided against the defendants and as a result the suit of the plaintiffs was decreed. An appeal was filed against the said decree which came up for decision before Shri Amarbir Singh Gill, the then learned Additional District Judge, Jalandhar. Phuman Singh defendant filed an application for amendment of his written statement as to take an additional plea that Partap Singh deceased had executed a Will dated 7.4.1976 by virtue of which he had succeeded to the estate of the deceased exclusively. The application for amendment was allowed and the learned Additional District Judge remanded the case to the trial court with the following observations:
Failure of the trial court to decide about the Will dated 7.4.1976 went to the root of the case and as such the judgment and decree of the trial court are set aside. The case is remanded to the trial court under Order 41 XLI, Rule 23 Code of Civil Procedure for fresh trial in accordance with law in the light of the observations made by this Court.
5. After remand, the amended written statement by Phuman Singh respondent was allowed to be filed and on its basis the following additional issue was framed:
8-B. Whether Partap Singh had executed a valid Will dated 7.4.1976 in favour of defendant No. 1? OPD
6. Shri K.S. Bhullar, Sub Judge 1st Class, received evidence on this additional issue and vide his judgment dated 30.1.1979 returned a finding on the said issue against Phuman Singh defendant and as a result decreed the suit of the plaintiffs once again.
7. Two appeals against the said decree were filed, one by Phuman Singh and the other by Malkiat Kaur. The judgment and the decree under appeal were attacked on the ground that after remand, the trial court ought to have recorded fresh findings on all the issues and not on issue No. 8-B alone. It was claimed that because of this illegality, the judgment and the decree of the learned trial court were liable to be set aside. This plea prevailed with the learned Additional District Judge, Jalandhar, who heard the appeals. Vide his order dated 9.4.1986 he set aside, the judgment and the decree of the trial court and once again remanded the case to it for its fresh decision in accordance with law.
8. I have heard the Learned Counsel for the parties. I find that the learned Additional District Judge did not go deep into the matter and, therefore, by following the judgment of this Court in Dhani Ram v. Ganesh Dass 1980 PLR 428 , passed the order under appeal. He did not appreciate the fact in Dhani Ram's case (supra) decided by this Court. In that case the trial court had failed to comply with the provisions of Order XIII, Rule 4(1) of the Code of Civil Procedure (for short the Code). It had not properly admitted the documentary evidence after making endorsement as required by the said provision. The omission on the part of the trial court to sign the exhibits and to comply with the aforesaid provision of the Code had resulted into an embarrassing and perplexed position as to whether these documents had or had not been admitted into evidence. Therefore, following the rule laid down in Prem Singh v. Mangal Singh and Ors. 1977 RLR 170 , it was held in Dhani Ram's case (supra) that the technical flaw mentioned above made it obligatory to order re-trial of the case. The remand order passed by the learned District Judge in that case also made it clear that but for the said technical flaw he would have remitted the case only for the trial of the newly framed issues. Dhani Ram's case, therefore, had no application to the facts as obtaining herein:
9. It is not disputed that in his remand order Shri Amarbir Singh Gill, the then learned Additional District Judge, did not set aside the findings recorded by the trial court on issues Nos. 1 to 8A. After allowing the application of Phuman Singh he had no doubt remanded the case by setting aside the judgment and the decree of the trial court. The amendment of the written statement by Phuman Singh gave rise to additional Issue No.8B only. The trial court, therefore, was required to return a finding on the said issue alone and not to appraise the entire evidence and give fresh findings on issues Nos. 1 to 8A as the finding on the same had not been reversed or opened for trial by the learned Additional District Judge. In almost similar circumstances in Mohan Lal v. Anandibai and Ors. MANU/SC/0578/1971 : AIR 1971 SC 2177, the final court resolved the question whether on remand the trial court was required to receive evidence and re-decide all the issue when the appellate court had not set aside the findings on those issues with the following observations.
In the order, the High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by Learned Counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial court and the first appellate court. This is not a correct interpretation of the order. Obviously, in directing that findings of both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata and has added that the trial court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise any new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata.
In Fauja Singh and Ors. v. Jaswant Singh 1978 PLR 456 , S.P. Gopal, J. dealt with a similar situation. The first appellate court, without going, into the merits of the findings of the trial court on the issues framed by it, had framed an additional issue in respect of execution and a validity of a Will, set aside the judgment and decree of the trial court and remanded the case for fresh trial and re-decision. After remand to the trial court and objections was raised that the parties could lead evidence only on the additional issue framed by the first appellate court but this objection was overruled by the trial court and it was held that the parties were entitled to lead evidence afresh on all the issues. Following the rule laid down in Mohan Lal's case (supra), it was held that the first appellate court had neither adverted to the findings of the trial court on the issues framed, nor reversed or affirmed them. The findings on these issues could not be said to have been set aside and consequently the case was deemed to have been remanded for fresh trial of the additional issue and redecision of the case.
10. In view of the above, I find that the learned Additional District Judge fell in error in remanding the case to the trial court once again and requiring it to redecide all the issues once again. I, therefore, allow these appeals with costs, set aside the order dated 9.4.1986 of the learned Additional District Judge and direct him to decide the appeal on merits. Costs are assessed at Rs. 300 in each appeal. The parties through their Learned Counsel are directed to appear before the learned Additional District Judge, Jalandhar on 29.5.1987.
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