Makkhan vs Addl. Judge,Small Causes Court,Aligarh and Others

O. P. Garg, J.—Heard Sri Divakar Rai Sharma, learned Counsel for the petitioner as well as learned Standing Counsel.

The petitioner instituted Suit No. 365 of 1985. The said suit was dismissed on 2321991. The petitioner has preferred civil appeal No. 11 of 1991. During the pendency of the appeal the petitioner asserted that he had been dispossessed in an unlawful manner by the contesting respondentsdefendants from the disputed property on 30th June, 1982. An application for amendment was moved for incorporating the above plea as well as relief of possession. This amendment application was allowed and an issue on the point has been framed. The petitioner moved an application under Order XLI, Rule 25 of the C.P.C. with the prayer that this issue be remitted to the trial Court for recording a finding thereon, after evidence of the parties. This application has been rejected by the Appellate Court by the impugned order dated 48 2000, a copy of which is Annexure3 to the writ petition, by observing that since the evidence of the parties with regard to the possession is already on record the issue is not required to be remitted for further evidence.

Sri Divakar Rai Sharma, learned Counsel for the petitioner has been successful in canvassing the point that the evidence on the newly framed issues is required to be recorded as this fact has to be established by the petitioner by leading fresh evidence that he was dispossessed during the pendency of the appeal. It was a subsequent event, which occurred during the pendency of the appeal. The observation of the Appellate Court that the evidence recorded by the trial Court on the question of possession is sufficient is wide of the mark for one simple reason that now the Appellate Court has to decide whether the petitioner was in fact dispossessed from the disputed property during the pendency of the appeal or not. The trial Court could not have recorded evidence with regarding subsequent event. Of necessity, the parties have to lead evidence to establish of disprove the newly framed issues, which arose on account of the amendment allowed by the Appellate Court.

There is yet another aspect of the matter. The finding of fact recorded by the trial Court is subject to the appeal. If the Appellate Court itself records the finding of fact, the plaintiff would be seriously prejudiced in his right to get the finding examined in appeal, should the finding go against him.

Sri Rai placed reliance on the decision of this Court reported in 1998 (1) ARC 159, Bhonu alias Nizamuddin v. Nankulli and others, in which expression ''may'' occurring in Order XLI, Rule 25 has been interpreted as ''shall''. Various observations made in the aforesaid decision squarely apply to the facts of the present case.

The Appellate Court has erred in not remitting the issue for decision by the trial Court after evidence.

This petition is finally disposed of with the direction that the Appellate Court, unmindful of the impugned order passed on 4 82000, shall give fresh look to the matter in the light of the above observations and after hearing both the parties shall pass appropriate order for remitting the issue framed during the course of the appeal to the trial Court for decision thereon, after affording reasonable opportunity to the parties to lead evidence.

The petitioner shall file a certified copy of this order before the Appellate Court within a period of 20 days from today. Thereafter, the Appellate Court shall pass appropriate orders within a period of 30 days. Appeal allowed.