1985 PLP 208 (MLD)

Nemo for Respondent. Date of hearing: 11th February, 1984. This first Appeal from Order is directed against the order of a learned Additional District Judge, Gujrat, . dated 19-12-1981 whereby accepting the appeal of the respondents the case was-remanded to the trial Court for fresh trial after framing fresh issues. - .

2. The brief facts of the case are: that the present appellant was the plaintiff before the trial Court. He sought a declaration to the effect that he is owner in possession of the suit land and respondents should be restrained from interfering in enjoyment of the property and possession thereof. The trial Court decreed the suit which had been instituted on 10-9-1969, vide Judgment and decree, dated 24-2-1979.

3. There was a further appeal by the respondents which came up for disposal before a learned Additional District' Judge, Gujrat who, vide the impugned order/judgment. dated 19-12-1981 has accepted the appeal and remanded the case. to the trial Court for fresh disposal after framing unspecified further issues.

4. This case was called out several times and was kept for the later part of the day. Till 1-10 p.m. none from amongst the respondents has turned up despite service. They are, therefore, ordered ex parte.

5. The learned counsel. for the appellant argues, in support of the appeal that there were two main issues which arose out of the pleadings, namely, (i) whether the Court had the jurisdiction and (ii) whether the plaintiff is the owner of the land. It', so far as issue No. 1 was concerned, that was decided by the trial Court as far back as 24-2-1972. It is further submitted that no doubt a duty is cast or, the Court to itself correctly frame the issues but all the same there is also a duty cast or, a party to claim addition /further issues should the Court omit to Luke into consideration any of the contentions of the parties.

6. The second contention of the learned for the appellant is that the material on the record was sufficient for the appellate Court itself to determine all the issues .which arose in the matter. Mere framing or non-framing of a particular issue in presence of other comprehensive issues when the parties are fully aware of the nature of the controversy, the case set up by either party or what the parties have to substantiate or meet, loses significance. Relying on a decision of the Supreme Court in re: Pramatha Nath Chowdhury and 17 others v. Kartir Mondal and 3 others P L D 1965 S C 434, he further submitted that remand is not to be resorted to lightly as it has the unwholesome effect of unnecessarily prolonging the litigation and 'where the evidence on record is sufficient for the decision of the questions raised. The appellate Court is to decide questions itself and remand is not to be lightly ordered. The learned counsel further supplemented his argument by relying on Kalian Das v. Jaffar Beg A I R 1942 Lah. 201 to say that the appellate Court ought not to have remanded the case for rehearing and redecision but if a proper case was made out it should frame an additional issue or if the case involves exclusion of evidence it could order to admit the same.

7. I have gone through the impugned judgment and the material on the record. I am of the view that if a comprehensive issue has been framed and the plaintiff led his evidence in support of the plaint and the defendant in the case on the basis of evidence which had been produced on record is fully aware of the case it has to meet, then non-framing of separate issues on each item of dispute would not be of much consequence if in the facts of a given case no prejudice is shown to have been caused to either party. I find substance in the further submission that in the light of the decision of the Supreme Court in the case of Pramatha Nath Chowdhury, a remand ought not to be ordered lightly. A perusal of the judgment of the learned Additional District Judge shows that he has not applied his mind to the requirement whether the issue framed was comprehensive and all-embracing and the evidence led by the parties at the trial was sufficient to effectually dispose of the controversy between them. The learned Additional District Judge also does not appear to have applied his mind nor listed the necessity for issues on any specific party of the controversy. It is only after the learned Additional District Judge had come to the positive conclusion that the material on the record was not sufficient for disposal of the suit and for the resolution of matters in controversy after due consideration of relevant facts and circumstances that the question of additional issues or remand ought to have arisen for consideration. There is also no application of the mind of the learned Additional District Judge as to the requirement of any additional issue and evidence on that issue to be recorded or for a fresh trial de novo.

8. The grievance of the learned counsel for the appellant seems to' have merit to the extent that he complains that there is lack of application of the mind of the learned Additional District Judge whether the facts and circumstances of the case justified a rehearing and redecision of the whole suit or the issues which had not been specified should have been framed. and on that issue a direction issued to the trial Court t B record evidence and send the case to the appellate Court for the decision of the matter. The learned Additional District Judge also overlooked the well-known principle that remand is not to be made lightly in order to provide another opportunity to the party to lead evidence so as to fill in the lacuna or provide deficiency. Reference in this behalf may be made to Ahmad Khan v. Malik Fazal Dad 1983 C L C1 74.

9. I think it is not necessary to dwell on other aspects of the matter because I am of the view that there has been no lawful disposal of the appeal by the learned Additional District Judge. The result is that the appeal is accepted and the impugned order is set aside and the learned Additional District Judge is directed to dispose of the appeal in accordance with law. There shall be, however, no order as to costs.' A.A . Appeal accepted,