Shetu Ram Vs. Roop Lal and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.v.k. ahuja, j 1. this is an appeal filed by the appellant under order 43 rule 1(u) c.p.c., against the order passed by the learned district judge, kinnaur division at rampur, dated 13.1.2005, vide which the appeal filed by the appellant against the judgment and decree of the court of learned civil judge (junior division), anni, was allowed to this extent that the application for amendment filed by the defendants/respondents was allowed and the case was remanded to the learned civil judge for deciding the case afresh after allowing amendment. 2. briefly stated, the facts relevant for present discussion are that the appellant alongwith smt. lachhi, filed a suit for declaration and injunction alleging that they had been in possession of the suit land since 17.8.1956 as mortgagees and on account of the failure of the defendants to pay the mortgage debt or to redeem the mortgage within the period, the right of redumption of mortgage has been foreclosed and the plaintiffs have become owners in possession of the suit land. 3. the suit was contested by the defendants on various pleas. the suit was decreed by the learned trial court. on appeal, the learned district judge allowed the application for amendment of the written statement by the defendants taking additional plea and by the said order, the learned district judge remanded the case to learned trial court for fresh decision in accordance with law. 4. i have heard the learned counsel for the parties and have gone through the record of the case. 5. the submissions made by the learned counsel for the appellant were two-fold, firstly that the application for amendment filed by the defendants/respondents should not have been allowed by the first appellate court since the matter was in litigation since long and the parties have even come to this court against the orders passed in the case and the application for amendment was allowed wrongly by the learned appellate court. 6. secondly, that the wholesale remand was not permissible and the learned appellate court should have sought the findings from the trial court on the issue to be framed arising out of the application for amendment allowed by the court. to substantiate his plea that the application for amendment ought not to have been allowed by the learned first appellate court, the learned counsel for the appellant had submitted that the applicants had already been in litigation and were not rustic villagers, which was the plea which weighed with the learned first appellate court in allowing the application for amendment. 7. on the point of amendment, the learned counsel for the respondents had relied upon the followings decisions of the apex court to show that the law in regard to amendment of pleadings is liberal and more particularly for amendment of the written statement and the application for amendment should be allowed if the plea taken is not inconsistent and is only a legal plea. 8. the decision in south konkan distilleries and anr. v. prabhakar gajanan naik and ors. 2008(4) ccc 395 (s.c.), was relied upon, in which it was held that the court should be liberal in allowing amendment of pleadings if party will suffer an irreparable loss and injury in case amendment is not allowed. 9. the decision in usha balashaheb swami and ors. v. kiran appaso swami and ors. : air2007sc1663 , shows that the following observations were made by their lordships in paras 18 and 19, which are relevant and are being reproduced below:a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. the general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. it has no counterpart in the principles relating to amendment of the written statement. therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding altering or substituting a new cause of action in the plaint may be objectionable. in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.10. insofar as the application for amendment having been allowed by the learned first appellate court, it is clear that it is no ground to reject the application since the parties have earlier approached this court in other matters and they cannot be said to be rustic villagers or illiterate and, therefore, they cannot be permitted to take this plea, which is a legal plea and has to be determined in view of the facts of the case. 11. keeping in view the assertions made in the application that the applicants/defendants want to take a plea if the suit was not maintainable in the present form in view of section 3 of h.p. relief of agricultural indebtness act, 1976, i am of the opinion that this plea was legal one, could be taken in the present suit and not in any other proceedings and since the said plea was material for just determination of the lis in between the parties, the application for amendment was rightly allowed by the learned first appellate court. the said part of the order is liable to be affirmed and the same is affirmed accordingly. 12. however, insofar as the second plea is concerned that the wholesale remand is not permissible, the learned counsel for the appellant had relied upon a division bench decision of this court in prem kumar and ors. v. parkash chand and ors. 2002(2) s.l.j. 1824. the observations made by the division bench of this court in para-7 are relevant, which are reproduced below: .the question, therefore, is either in the order is passed by the first appellate court under rule 23-a or rule 25 of order 41 of the code. but, in either case, contended the learned counsel, it was obligatory on the part of the first appellate court to frame issue(s). if the first appellate court was of the view that the decree passed by the trial court was liable to be reversed which had been passed on merits, it was open to the appellate court if it thought fit to remand the matter by directing what issue or issues should be framed in the case so remanded and by sending a copy of the judgement or order to the court from whose decree the appeal was preferred, i.e., to the trial court. but the said course has not been adopted by the first appellate court. similarly, rule 25 has also not been invoked inasmuch as it was incumbent upon the first appellate court to frame issue or issues and refer the same to the trial court from whose decree the appeal is preferred by directing the said court to take additional evidence if required, proceed to try such issue or issues and return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court. that is, however, not done. hence, in either case, the order passed by the first appellate court deserves to be quashed and set aside.13. in view of the view expressed by this court in the above mentioned case, it is clear that the wholesale remand was not desirable in the facts of the case and, therefore, the said part of the order passed by the learned first appellate court is liable to be set aside. no issue can be framed by this court since the plaintiff is yet to file replication to the amended written statement. therefore, an opportunity shall be given to the plaintiffs to file replication to the amended written statement and fresh issue shall be framed by the learned trial court and the learned trial court shall remit its findings to the learned first appellate court on the new issue to be framed within a period of three months from the date fixed for hearing. after the findings had been remitted to the court of learned district judge (appellate court), both the parties shall be at liberty to file cross objections to the findings given on the new issue so framed and the findings given already by the learned trial court and the findings given on the new issue shall be considered by the learned appellate court in the appeal and the appeal shall be disposed of afresh by the learned district judge in accordance with law. the appeal shall be readmitted at the same number and shall remain pending with the learned first appellate court, who shall try to dispose of the case on priority basis as and when the findings are remitted by the learned trial court within the time fixed by this court. a copy of the judgment, therefore, be sent to the learned first appellate court as well the trial court and the case shall be disposed of by the courts below in view of the orders passed as above. the appeal is acccorindgly allowed with no order as to costs. the parties to appear before the learned trial court on july 30, 2009. 14. in view of the final disposal of the main appeal, the interim order dated 28.2.2005 passed in cmp no. 43 of 2005 and confirmed on 29.6.2005, shall stand vacated.