Sant Ram vs Harbans Singh

R.L. Anand, J.—This is a second appeal against the order and has been directed against the judgment dated 5.8.1988, passed by the Court of Additional District Judge, Patiala, who allowed the appeal of the defendant and set aside the judgment and decree dated 2.4.1987, passed by the Court of Sub Judge, 2nd Class, Rajpura, who decreed the suit of the plaintiff-respondent.

The brief facts for the purpose of the present order can be described in the following manner, Shri Harbans Singh filed a suit for possession of agricultural land measuring 7 Biswa was fully described in the head-note of the plaint against Shri Sant Ram, by alleging that defendant had encroached upon that area. Of course, the suit was contested by Shri Sant Ram. The trial Court framed the following issues:-

Whether the plaintiff is entitled to possession on the basis of Naksha Tawafat as alleged? OPP

Whether the report of Field Kanugo is without notice, if so its effect? OPD

Whether the Field Kanungo''s report is without compliance of instructions of Financial Commissioner, if so its effect? OPD

Whether the plaintiff has no cause of action? OPD

Whether the defendant is entitled to special costs? OPD

Whether the suit is not maintainable? OPD

Relief.

The parties led oral as well as documentary evidence in support of their case and finally the suit of Shri Harbans Singh was decreed vide judgment and decree dated 2.4.1987. Aggrieved by this judgment and decree Shri Sant Ram filed the first appeal before the Court of Additional District Judge, Patiala.

It may be mentioned here that during the pendency of the suit the plaintiff filed an application for leading additional evidence under Order 18 Rule 17-A C.P.C. in the trial Court, which was dismissed.

When the appeal was being heard by the Court of Additional District Judge, Patiala, he came to the conclusion that the trial Court wrongly dismissed the application of the plaintiff for leading additional evidence. Resultantly, the first appellate Court set aside the judgment and decree of the trial court and remanded the case to the trial Court for a particular date. Aggrieved by the judgment dated 5.8.1988, the present appeal has been filed by Shri Sant Ram.

This appeal I am disposing of with the assistance of Shri G.S. Gandhi, Advocate, on behalf of the appellant and Shri Gurnam Singh, Advocate, who appeared on behalf of the respondent.

In this case, this Court feels that there was hardly any justification on the part of the Additional District Judge, Patiala, to remand the case. The first appellate court could entertain the application under Order 41 Rule 27 C.P.C. or could give the directions to the trial Court to record evidence on the application under Order 18 Rule 17-A C.P.C. filed by the plaintiff and to send the report. After receiving the report from the trial Court or after recording the evidence of the parties on the application under Order 41 Rule 27 C.P.C. the first appellate Court could have disposed of the appeal on merits.

Resultantly, this appeal is allowed, the order dated 5.8.1988, is hereby modified and the directions are given to the Additional District Judge, Patiala, to re-admit the appeal to its original number. It is stated at the bar that the record of the case is lying with the trial Court. Directions are given to the trial Court to take the additional evidence of the plaintiff and to remit the record to the first appellate Court which shall take into consideration the additional evidence so recorded by the trial Court while disposing of the applications on merits. The trial Court will also give a chance to the defendant to rebut the additional evidence of the plaintiff. Directions are also given to the Additional District Judge, Patiala, to dispose of this appeal within six months, from the receipt of the additional evidence and record of the trial court. The parties through their counsel are directed to appear before the first appellate Court on 14.10.1999 Which may passes suitable directions in the matter copy of the order be given dasti and copy of the order be also sent to the Additional/District Judge, Patiala, for compliance.