FAO/194/2018 of SURENDER SINGH MULTANI Vs VANEETA JAIN AND OTHERS on 31 December 2018

1. Whether the parties entered into an agreementof sale with respect to the suit propertyaccording to the terms and conditions given inpara 3 of the amended plaint? OPPof sale with respect to the suit propertyaccording to the terms and conditions given inpara 3 of the amended plaint? OPP

2. Whether fraud and pressure was exercised onthe defendant and there is no valid agreementbetween the parties?OPD.the defendant and there is no valid agreementbetween the parties?OPD.

3. Whether the plaintiff has been and is willing toperform his part of the contract?OPPperform his part of the contract?OPP

4. Whether the time was the essence of thecontract? OPD.contract? OPD.

5. Whether the defendant is bound to obtain thepermission of the competent authority underthe provisions of Himachal Pradesh Tenancyand Land Reforms Act for transfer of the suitproperty as also no objection certificate fromthe Income tax authorities?OPP.

6. Whether the plaintiff is estopped from filing thepresent suit due to his acts, conduct andacquiescence?OPD.present suit due to his acts, conduct andacquiescence?OPD.

7. Whether the plaintiff is entitled to a decree forspecific performance? If so, in which form? OPPspecific performance? If so, in which form? OPP8.Relief.

The learned trial Court, after, making a conclusion quathere existing interconnectivity, and, interlinkage inter seall the afore formulated issues, thereafter clubbed all theafore issues, and, rendered common findings, upon, eachof them, (a) and, for requisite reasons hence rendereddisaffirmative findings, upon issue No.1, 3, 5 and 7,(b)and, rendered affirmative findings, upon, issues No.2and 4. Being aggrieved therefrom, the plaintiffsinstituted, an appeal before the learned First AppellateCourt, and, the latter Court hence proceeded to renderthe impugned verdict.

4. The learned counsel appearing, for, theaggrieved therefrom defendant, and, the learned counselappearing for the plaintiff, (i) respectively make

vehement espousals before this Court, for, hence,invalidating or validating the impugned verdict, (ii) and,concomitantly also respectively hence espoused qua theappropriate course, for, adoption, by the learned FirstAppellate Court being one comprised in Order 41, Rule 25of the CPC, and, one embodied, in, the mandate borne inOrder 41, Rule 23-A, CPC hence being meritworthy. 5. Before proceeding to dwell into, and, mete anadjudication, upon, the afore espousals made before thisCourt, by the learned counsel for the contesting litigants,(a) it is deemed incumbent to render a verdict, vis-a-vis,the necessity at all, of, framing of the afore issue No.7-A.The afore framed issue, appears, to stand formulated,hence under the impugned verdict, by the learned FirstAppellate Court, upon, its being grossly unmindful, vis-a-vis, an order pronounced by this Court, on 6.5.1992, (b)wherein, a graphic disclosure, is, borne qua in theamended plaint, only, the name of plaintiff Shri Jawahar Lal Jain hence occurring, and, yet in the writtenstatement, as well, as, in the replication thereto, as, filedby the plaintiff, a, reference also being made to originalplaintiff No.2 M/s Punjab Concast Steel Ltd, (c) and, uponthe counsels respectively appearing for the contestinglitigants, hence, making a conjoint address before thisCourt qua th afore occurrence, in, the plaint, vis-a-vis, thename of M/s Punjab Concast Steel Ltd., original plaintiffNo.2, rather arising from, a mere sheer inadvertence,and, it being ignored, (d) thereupon, this Court acceptingthe afore espousal, hence, the learned First AppellateCourt, was enjoined to revere the afore mandatepronounced, by this Court, on 6.5.1992, than, to proceedto strike issue No.7-A supra. Consequently, theformulation, by the learned First Appellate Court, of,afore issue No.7-A, and, any direction made by it, upon,the learned trial Court, for, rendering findings thereon, iswanting in legality, and, hence, the afore issue is rendered redundant, and, also concomitantly, no findingsare required to be rendered thereon, hence, by thelearned trial Court. 6. Nowat, the core controversy engaging the Nowat, the core controversy engaging the contesting litigants, devolves upon, the trite factum quathe learned first Appellate Court, validly recoursing Order41, Rule 23-A of the CPC, or whether the aptrecoursing(s) rather being the one ordained, in, Order 41,Rule 25 of the CPC. Before proceeding to rest the aforelegal conundrum, it is significant to bear in mind (a) that,the striving(s) of the learned counsel, hence, appearingfor the respondents herein, for, his rather validating theimpugned verdict, is, squarely rested, upon, the learnedFirst Appellate Court, rather making a valid conclusionqua the learned trial Court, hence, committing anillegality in its clubbing or consolidating, all the aforeissues, and, also its concomitantly rendering commonfindings thereon, (b) AND hence, thereupon, its making deep pervasive infraction(s), vis-a-vis, the mandate borne in Order 20, Rule 5, of, the CPC, provisions whereof standextracted hereinafter:- “5. Court to state its decision on each

Issues

issue.- In suits in which issues have beenframed, the court shall state its findings ordecision, with the reasons therefor, upon, eachseparate issue, unless the findings upon anyone or more of the issues is sufficient for thedecision of the suit.”

A plain reading of the hereinabove extracted provisions borne, in, Order 20, Rule 5 of the CPC, (c) though, doesvisibly bring forth, a noticeable, and, evident factum, of,a statutory injunction being cast, upon, the civil courtconcerned, to, render findings upon each of the issue(s),struck, upon, the contentious pleadings, of, thecontesting litigants, (d) yet the afore peremptoryinjunction cast, upon, the civil courts concerned, is, witha rider qua, (e) unless recording, of, findings upon one ormore issues, rather being sufficient for the decision, of,the suit. However, the afore provisions, as stand alluded, in the impugned verdict, by the learned First AppellateCourt, in its hence recoursing the mandate embodied inOrder 41, Rule 23-A, of the CPC, appear(s) to standsparked, by, a gross mistaken dependence being madethereon, (f) given the afore exception, to, the dire legalnecessity cast, upon, the civil court concerned, to renderfindings upon each of the issue(s), and, imperativelyrather with the afore exception becoming activatedrested, upon, any returning, of, a finding, upon, any issuerather being construed by the court concerned, to besufficient, for, hence making, of, a valid pronouncement,vis-a-vis, the fate of the case, (g) obviously, beingrequired to read in tandem, with, the mandate of Order14, Rules 1 and 2 of the CPC, provisions whereof standextracted hereinafter, (f) necessarily for begetting an aptinter se harmony, and, also for obviating both being notrendered redundant.

“1. Framing of issues

(1) Issues arise when a material proposition of fact or lawis affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law orfact which a plaintiff must allege in order to show a right tosue or a defendant must allege in order to constitute hisdefence.

(3) Each material proposition affirmed by one-party anddenied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, afterreading the plaint and the written statements, if any, and71[after examination under rule 2 of Order X and afterhearing the parties or their pleaders], ascertain upon whatmaterial propositions of fact or of law the parties are atvariance, and shall thereupon proceed to frame and recordthe issues on which the right decision of the case appearsto depend.

(6) Nothing in this rule requires the Court to frame andrecord issues where the defendant at the first hearing of thesuit makes no defence.

[2. Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on apreliminary issue, the Court shall, subject to the provisionsof sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the samesuit, and the Court is of opinion that the case or any partthereof may be disposed of on an issue of law only, it maytry that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being inforce, and for that purpose may, if it thinks fit, postpone thesettlement of the other issues until after that issue has beendetermined, and may deal with the suit in accordance withthe decision on that issue.]”

A close and incisive reading, of, the hereinaboveextracted mandate, as, encapsulated in Order 14, Rule 2of the CPC, (i) makes vivid upsurgings qua the civil courtconcerned, being enjoined to pronounce judgment, on allissues, yet, upon, the civil court concerned, rathermaking an objective discerning qua the lis, being aptlyterminable, upon, findings being rendered, upon, an issueappertaining to law, specifically appertaining qua (a) thejurisdiction of the court, or (b) a bar to the suit created byany law for the time being in force, (ii) thereupon, itbeing a valid befitting endeavour, for, hence the learned trial Court, to, hence after framing the afore issue(s) oflaw, rather render findings thereon, for hence ensuringtermination, of, lis , and, also obviously hence, beingempowered, to, postpone the settlement of, or,formulation of issues of fact. However, even the aforemandate, as, encapsulated in the provisions supra, bornein the CPC are unamenable, for, recoursing by thelearned counsel, for the respondents, for his hencestriving, to, validate the impugned pronouncement, (iii)given this Court, at the apt stage, of its, rather holdingthe apposite pecuniary jurisdiction, hence to try the suit,it formulating all issues of fact, and, of law, and,obviously when within, the, domain of sub-rule (2) to Rule2, of, Order 14 of the CPC, (iv) no apt issues of law wereeither struck nor formulated, nor hence obviously whenthere was any postponement of formulation of issuesappertaining to the contested facts, arising, from thepleadings, as, respectively reared by the contesting litigants, (v) thereupon, it was imperative for the learnedtrial Court, to not segregate the issues of fact, from theissues of law, nor hence, it was legally befitting, for, thelearned trial Court to pronounce verdicts only, upon,issues appertaining, to law, and, to omit to renderfindings, upon, the factually contested issues, rather inthe learned trial Court rendering findings upon issues offact, and, upon, purported issues of law, has obviouslynot committed hence any gross illegality or impropriety. 7.However, the afore making, of, a combinedreading, of, the afore exception, vis-a-vis, the mandateborne, in Order 20, Rule 5 of the CPC, wherein, in, theopening part thereof, a strict injunction is cast, upon, thecivil courts concerned, to, decide each issue separately,and, also to render separate findings, upon, each issue,AND, with the mandate of Order 2, Rule 14 of the CPC. (i)It is evident qua hence for ensuring harmony inter se theafore provisions, that, the exception borne in Order 20, Rule 5 of the CPC, RATHER being recourseable, only uponemergences, of, the gravest exceptional circumstance,(ii) AND comprised, in, existence, of, forthright evidencequa the suit hence being barred by limitation or by lawpronounced, by the Hon'ble Apex Court, and, only uponthe afore exceptional contingencies rather evidentlyarising, (iii) thereupon, any non rendition of findings, bythe learned trial Court, upon, the, issues appertaining tothe contested facts, being, hence being legally worthy,given theirs being rendered redundant.

8. Be that as it may, a circumspect, and, deepreading of the afore provisions, does not apparently, barthe learned trial Court, to, upon its making an objectivediscernment, qua there being, a, visible interconnectivityinter se, the, formulated or struck issues, to hence,proceed to render common findings, upon, each of them(a) nor a surgical reading of the afore provisions, forbids,the, civil court concerned to club or consolidate, all, interlinkable or inconnected issues. However, the aforeinterconnectivity or inter-reliability, has, rather to beevident, and, also all the evidently interconnected orinterlinked issues, are also required, to be hence thereonrather returned findings, (i) AND a stark illegality wouldarise, only, upon, evidently interconnected orinterlinkable issues rather remaining unanswered or nofindings standing recorded thereon. Bearing in mind theafore principle of law, as innately encapsulated, in theprovisions supra, and, when all the issues, whereonhence common findings are rendered, are evidently, and,apparently mutually interconnected, (ii) and, also when,they are also validly consolidated, thereupon, the learnedtrial Court, upon, its considering all the evidence appositeto each of the consolidated issue(s), and, thereafter itproceeding to render findings, upon, each of them, (iii)rather thereupon, foster(s) an inference qua it beingunshakeably clear, that, the injunction supra cast, upon, the learned trial court, to, render findings, upon, each issue(s) standing neither breached nor infracted,whereupon, the strivings, of, the learned counsel, for, therespondent, is hence invalidated.

9. The effect of the afore discussion, necessarily brings to, the fore, the validity of recoursing, by thelearned first appellate court, vis-a-vis, the mandate ofOrder 41, Rule 23-A of the CPC, or whether it was ratherbefitting for the learned first Appellate Court, to, recoursethe provisions of Order 41, Rule 25 of the CPC. Fordetermining the afore trite conundrum, it is imperative,to extract hereinafter, the, provisions of Order 41, Rule23-A of the CPC, and, the provisions of Order 41, Rule 25of the CPC:- “23-A Remand in other cases.-Where theCurt from whose decree an appeal is preferredhas disposed of the case otherwise than one apreliminary pint, and, the decree is reversed inappeal and a re-trial is considered necessary, the Appellate Court shall have the samepowers as it has under Rule 23.

25. Where Appellate Court may frameissues and refer them for trial to courtwhose decree appealed from.- Where thecourt from whose decree the appeal ispreferred has omitted to frame or try anyissue, or to determine any question of fact,which appears to the Appellate Court essentialto the right decision of the suit upon themerits, the Appellate Court may, if necessary,frame issues, and, refer the issue for trial tothe court from whose decree and appeal ispreferred and in such case shall direct suchcourt to take the additional evidence required;and such court shall proceed to try suchissues, and shall return the evidence to theAppellate Court together with its findingsthereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].”

A surgical reading, vis-a-vis, the mandate of Order 41,Rule 23-A hence brings forth rather upsurgings (i) quaupon the learned First Appellate Court, upon, noticing quathe learned trial Court hence omitting to frame or strikeany issue(s) appertaining to the fact(s) or to law, (ii)whereas, both whereof hence appear to the learned firstAppellate Court, rather essential, for, arriving at a validdecision, upon, the merits of the suit, (iii) thereupon, thelearned First Appellate Court being empowered to frameapt therewith issues, and, to refer them to the learnedtrial Court, for, their trial, and, thereafter, it being alsoempowered to make an order of remand, to, the learnedtrial Court concerned, to, within a time bound period,hence, make a decision upon the relevant issues.However, it is also apparent, on, a reading of Order 41,Rule 25 of the CPC, (iv) qua upon the learned FirstAppellate Court, hence, within its ambit rather making an order of remand, vis-a-vis, the learned trial Court, torender findings, upon, the, issues formulated by theformer Court, it, also being legally empowered, to, makea direction upon it, to, after receiving the apt evidencethereon, to also render apt findings thereon,(v) AND, forfacilitating the afore statutory purpose(s), its alsotransmitting its verdict, wherethrough, hence, the aptremanded issues stand remitted, vis-a-vis, the learnedfirst Appellate Court, (vi) imperatively, hence, the, innatesubtle nuance thereof, is qua, the learned First AppellateCourt, rather maintaining the appeal on its docket, and,after, the, order of remand, hence, being complied withby the learned trial Court concerned, thereupon, the,Appellate Court, within the ambit of Order 41, Rule 26 ofthe CPC, provisions whereof stand extracted hereinafter,(vii) hence permitting the apposite aggrieved, to, withinthe time fixed by it, hence, prefer objections therebefore,against, the findings rendered, upon, the relevant issues, by the learned trial Court, (viii) conspicuously upon, thelatter receiving them on remand, from, the first AppellateCourt, provisions of Order 41, Rule 26 read as under:-

10. “26. Findings and evidence to be put on

record-objections to finding.- (1) Suchevidence and findings shall form part of therecord in the suit; and, either party may, withina a time to be fixed by the Appellate Court,present a memorandum of objection to anyfindings.

(2) Determination of appeal- After theexpiration of the period so fixed for presentingsuch memorandum the Appellate Court shallproceed to determine the appeal.”

The learned counsel appearing for the

appellant has contended, that, the afore recoursing, was both valid and appropriate, than the recorusings, by thelearned First Appellate, vis-a-vis, the mandate of Order41, Rule 23, of, the CPC, provisions whereof standextracted hereinafter:- “23. Remand of case by Appellate Court.

Where the court from whose decree an appealis preferred has disposed of the suit upon a preliminary point and the decree is reversed inappeal, the Appellate Court may if it thinks fit,by order remand the case, and may furtherdirect what issue or issues shall e tried in thecase so remanded, and shall send a copy of itsjudgment and order to the court from whosedecree the appeal is preferred, with directionsto re-admit the suit under its original numberin the register of civil suits, and proceed todetermine the suit; and the evidence (if any)recorded during the original trial shall, subjectto all just exceptions, by evidence during thetrial after remand.”

(i) given any adherence to the mandate, of, the

hereinabove extracted provisions of CPC, being sparked,only upon, a gross legal misdemeanor being visiblycommitted by the learned trial court, (ii) comprised in itsproceeding to terminate the lis, upon, its recordingfindings, upon, a preliminary point, despite all issues, of,fact, and, of law being conjointly tried, (iii) AND hence itinvalidly segregating issues, of fact, and, of law, and, alsoupon hence its making hence proceedings outside thedomain of the afore grave exceptional contingency(ies),

(iv) and, upon, the afore manner of termination of lis, bythe learned trial Court, being frowned, upon, by thelearned First Appellate Court, (v) thereupon, the latterCourt, being also empowered to make an order ofremand, upon, the learned trial Court to record findings,upon, a, specific issue, or issues, (vi) and, thereafter thelearned First Appellate Court being further empowered,to, mete a direction, upon, the remandee court, to,readmit the suit, in, the relevant register, and, to proceedto determine the suit afresh, and, obviously hence adenovo trial, of, the suit, being an apt dire legalnecessity. (vii) Since, the afore parameters, are,unsatiated by the verdict rendered by the learned trialCourt, (viii) thereupon, the afore espousal made beforethis Court, by the learned counsel appearing for theappellant, is, both apt as well as legally sound, (ix)reiteratedly given the verdict appealed before thelearned First Appellate Court, rather making an evident display qua the learned trial Court not terminating the lis,upon, any preliminary point, (x) thereupon, it wasmisbefitting, for the learned First Appellate Court, to,obviously hence make an order, of, wholesale remandalso to hence order for an impermissible denovo trial ofthe civil suit. Contrarily, the recoursing by the learnedfirst Appellate Court, vis-a-vis, the mandate of Order 41,Rule 25 of the CPC, was rather, both befitting andappropriate, whereas, failure of recoursing thereto, isboth inapt and illegal, thereupon, the impugned verdictsuffers, from, an inherent legal fallacy. 11.For the foregoing reasons, the instant appeal isallowed and the impugned verdict is modified, in, theafore terms. The learned trial Court is directed, to,within a period of three months from 27[th] February, 2019,render findings only upon issue No.1(a) supra, and, thelearned First Appellate Court is directed to within theambit of Rule 25, Order 41 of the CPC, maintain, the

record of the civil appeal in its docket, and, after thelearned trial Court within the afore period, renders hencefindings, upon, the afore issue, the learned First AppellateCourt, is, directed to, within the ambit of Order 41, Rule26 of the CPC, permit the aggrieved therefrom, to, withina specified period hence rear objections, in, civil appealNo. 23-S/13 of 2017/14 (Old No.22-S/13 of 2014), tomaintained on its docket, by the learned First AppellateCourt. The parties are directed to appear before thelearned trial Court on 27[th] February, 2019. All pendingapplications also stand disposed of. No order as to costs.Apposite records be sent back forthwith, to the ld. trialCourt, and, to the learned First Appellate Court.

31[st] December, 2018.

(jai)

(Sureshwar Thakur) Judge.