Balaram Das and ors. Vs. Ganesh Karan and anr. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - there is no discussion as to whether the issues framed by the trial court were sufficient to cover the new issues framed by the appellate court, nor there is any discussion as to whether in spite of non-framing of the issue, parties had adduced evidence knowing fully well about the questions involved in the suit. law is well settled that mere non-framing of a specific issue will not be sufficient to set aside a judgment if parties have led evidence and gone into trial knowing the real nature of the dispute involved.p.k. misra, j.1. defendants have filed this civil revision against the judgment dated 18.9.1996 whereunder the appellate court has framed an issue and remitted the said issue to the trial court for disposal. evidently, such an order of remand comes within the scope of order 41, rule 25, c.p.c. the sole question is whether the appellate court was justified in passing the said order. it is not necessary to recount in detail the cases of rival parties. on a perusal of the judgment of the appellate court it appears that after recounting the cases of both parties and noticing the findings of the trial court, the appellate court, in paragraphs 5 and 7 (it may be noted that there is no paragraph - 6 in the judgment) has noticed the contentions of both sides. in paragraph-8, which contains the entire discussion of the appellate court is extracted hereunder:'heard counsel for both the sides and after careful scrutiny of the contentions advanced by both the sides, i am of the considered view that the issue such as 'whether the plaintiff-appellants have got any right, title, interest over the disputed land' is an important issue. therefore the case should be remanded to the lower court for adjudication of that issue.'the lower appellate court thereafter directed that the issue 'whether the plaintiff-appellants have any right, title and interest over the disputed land' should be considered by the trial court. suffice it to say that the appellate court has passed the order of remand mechanically without considering the contentions of either party. there is no discussion as to whether the issues framed by the trial court were sufficient to cover the new issues framed by the appellate court, nor there is any discussion as to whether in spite of non-framing of the issue, parties had adduced evidence knowing fully well about the questions involved in the suit. law is well settled that mere non-framing of a specific issue will not be sufficient to set aside a judgment if parties have led evidence and gone into trial knowing the real nature of the dispute involved. it is, of course, true that in the present case, the judgment has not been set aside, but only the trial court has been called upon the decide the new issue. even then the appellate court should have considered as to whether the evidence on record already covered the new issue sought to be decided in the case. the appellate court could have come to its own conclusion on that aspect. it is, therefore, directed that the lower appellate court shall hear the matter afresh and if after going through the materials on record it comes to conclusion that no appropriate issue had been framed by the trial court and any of the parties had been prejudiced due to non-framing of issue, the appellate court can frame a suitable issue and direct the trial court to give finding on the basis of the said issue after recording evidence. if, on the other hand, the appellate court comes to the conclusion that notwithstanding the non-framing of a specific issue, parties were aware about the question involved and had adduced evidence and no prejudice had been caused, it can decide the appeal on its own merit. it is made clear that the order of the appellate court is set aside mainly because there is no apparent application of judicial mind and remanding the matter to the appellate court for fresh disposal should not be taken to be expression of any opinion on this aspect.2. the civil revision is accordingly allowed. there will be no order as to costs. the parties through their counsels are directed to appear in the appellate court on 14th october, 1998, to receive further instruction in the matter so that the appellate court can fix an appropriate date for hearing thereafter.