Smt. Jagir Kaur and Others vs Board of Revenue and Others

Dr. B.S. Chauhan, J.—The instant writ petition has been filed for setting aside the judgment and order of the Board of Revenue dated 10.4.2001 (Annx. 8) as well as the order of the Revenue Appellate Authority dated 22.2.2001 (Annx. 7), by which the Courts below have set-aside the judgment and decree of the trial Court dated 9.10.2000 (Annx. 5) in favour of the present petitioners and remanded the case to the trial Court to decide it afresh recording the findings issue-wise, after giving opportunity to the parties to lead evidence.

The facts and circumstances giving rise to this case are that the predecessor-in-interest of the respondents had been allotted the land in dispute and being aggrieved and dissatisfied the predecessor-in-interest of the petitioners filed a revision which was decided by the Board of Revenue vide judgment and order dated 31.3.1981 (Annx. 2), setting aside the order of allotment made by the Collector and remanded the case to consider their respective claims in respect of the land in dispute after hearing the parties afresh. As no action could be taken for a long time and the respondents continued in possession of the suit property inspite of cancellation of the allotment order in their favour, petitioners, on 26.4.1995, filed a suit u/s 183 of the Rajasthan Tenancy Act, 1955 for eviction of the respondents. Respondents filed written statement on 7.8.1993 at a much belated stage. The learned trial Court framed six issues on 27.9.1999 (Annx. 4). The evidence was led by the petitioners but respondents did not examine any witness and the trial Court closed their evidence and the suit was decreed vide judgment and decree dated 9.10.2000 (Annx. 5). Respondents, being aggrieved and dissatisfied preferred an appeal before the Revenue Appellate Authority which had been allowed vide judgment and decree dated 22.2.2001 (Annx. 7) and the said judgment has been affirmed by the Board of Revenue vide judgment and order dated 10.4.2001 (Annx. 8). Hence this petition.

Mr. H.S. Sandhu learned Counsel for the petitioners has submitted that the Board of Revenue erred in allowing the respondents to lead evidence in defence on remand, as such a course was not permissible for the reason that once the defence evidence has been closed for not adducing any evidence inspite of giving ample opportunities, there could be no justification for the Courts to allow them to lead evidence in defence after remand. Secondly, it has been submitted by Mr. Sandhu that though the issues had been framed, but not giving judgment issue-wise would not vitiate the same.

On the contrary. Mr. R.S. Saluja learned Counsel for respondents has submitted that the Courts below have allowed the respondents to lead evidence in their defence in the interest of justice and the said judgments do not require any interference; moreso in view of the provisions of Order 14 Rules 1 and 2 of the CPC (hereinafter referred to as CPC) it was mandatory for the trial Court to record findings on each issue separately and no fault could be found with the remand order on this count.

I have considered the rival submissions made by the learned Counsel for the parties.

Order 14 Rules 1 and 2, CPC undoubtedly requires the Court to pronounce judgment on all issues. Rule 1 of the said Order provides for framing of issues, on which the right decision of the case appears to depend.

In Siddik Mohamed Shah v. Mst Saran AIR 1930 PC 57, the Privy Council considered the scope of relying upon the evidence led on one issue to determine the other issue when the second issue had not been properly framed. The Privy Council held that generally it is not permissible to rely upon such an evidence in absence of factual foundation, but such a rule would not apply to a case where parties want to trial with the knowledge that a particular question was in issue, though no specific issue had been framed thereon and adduced evidence relating thereto.

In Nedunuri Kameswaramma Vs. Sampati Subba Rao, the Hon''ble Supreme Court considered the case where all the issues had not been framed and the issues which had been framed, could have been framed more elaborately, and held as under:

Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those by the other side, it cannot be said that the absence of an issue was fatal to the case, or that there that was mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.

Similar view had been reiterated by the Hon''ble Supreme Court in Nagubai Ammal and Others Vs. B. Shama Rao and Others,

Similarly, in Kunju Kesavan Vs. M.M. Philip I.C.S. and Others, , the Hon''ble Supreme Court observed as under:

The parties went to trial, fully understanding the central fact whether the succession as laid down to the Evidence Act applied to Bhagwathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision.

In Kali Prasad Agrawal v. Bharat Cooking Coal Ltd. and Ors. AIR 1989 SC 1530, the Apex Court held that where the parties going to trial with full knowledge of what they had to prove and adduce evidence in support of respective claims, the plea cannot be entertained that in absence of proper pleadings, evidence cannot be looked into.

In Bakshi Lochan Singh and Others Vs. Jathedar Santokh Singh and Others, , the Division Bench of the Delhi High Court observed as under:

We do not find any substance in the complaint of the appellants that issues were not framed in the suit. The object of framing issues in a suit is to determine the rival contentions of the parties so that the suit may proceed with respect to those contentions. The appellants have not pointed out to us any contention raised by them in the written statement which has not been dealt with by the learned Single Judge. That being so, the absence of issues cannot be said to have prejudice the appellants.

It is settled proposition of law that the validity of an order is to be tested on the touch-stone of doctrine of prejudice. (Vide Jankinath Sarangi Vs. State of Orissa, ; K.L. Tripathi Vs. State Bank of India and Others, ; Sunil Kumar Banerjee v. State of West Bengal and Ors. AIR 1990 SC 1170 ; Major G.S. Sodhi Vs. Union of India (UOI), ; Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., ; Krishan Lal Vs. State of Jammu & Kashmir, ; State Bank of Patiala and others Vs. S.K. Sharma, ; S.K. Singh Vs. Central Bank of India and Others, ; and State of U.P. Vs. Harendra Arora and Another, .

In Smt. Kaniz Fatima v. Shah Naib Ashraf AIR 1983 All. 450, the Allahabad High Court has taken the view that non-framing of issues on questions and recording findings thereon and passing decree on such findings is not permissible in law and further held that non-framing of issue on certain pleas raised by the parties and finding recorded on such plea cannot be made foundation of decision on any other plea merely because evidence had been led by the parties on former pleas. While recording the aforesaid proposition of law, the Court placed reliance upon its earlier Division Bench judgment in Jagannath Prasad Bhargava v. Lala Nathimal AIR 1943 All. 17, wherein the Court had held as under: -

It is very obvious legal principle that there should be no decision against a person who has not had an opportunity of being heard upon the point which is to be decided.

The Court further placed reliance upon the judgment of Oudh Court in AIR 1943 17 (Oudh) Ganno v. Srideo Sidheshwar ILR 1902 (2) Bom. 360 ; and Haridas Mundhra Vs. Indian Cable Co. Ltd., and held that it was the duty of the Court to frame issues even if the Counsel for the parties or the party did not insist for it as refusal by the Counsel for a party to help in framing of issues did not absolve the Court from framing the issue unless it is satisfied that the defendant did not want to make any defence.

However, in Dharamshala Agwar Sukhla and Ors. v. Sanatan Dnaram Sabha (Regd), Barnala and Ors. AIR 1985 NOC 79, the Punjab and Haryana High Court held that non-framing of issues, where the parties were fully aware of real dispute and they lead evidence thereon, the finding recorded by the Court cannot be held to have vitiated.

Thus, in view of the above, I reach the inescapable conclusion that though the provisions of Order 14 Rules 1 and 2 CPC provide for framing of issues and recording the finding on each issue separately, but the party claiming that non-framing of issue has vitiated the trial and further judgment and decree in consequence thereof has to satisfy the Court as how its cause stood prejudiced, explaining as it could not understand fully as what was the central point in controversy and for that reason it failed to lead evidence on that issue. In absence of such a course, the judgment and order in such a trial should not be declared to have vitiated.

In the instant case, six issues had admittedly been framed. The first Appellate Court had recorded the finding of fact that such issues were not available in the record of the file though both the parties had admitted framing of six issues and both of them were having the copy of such issues. What prevailed in the mind of the first Appellate Court was that the trial Court has not acted properly and did not even look to the issues framed by it. It was because of the carelessness of the trial Court that the Appellate Court considered it appropriate to remand the case for decision afresh issue-wise. The Board of Revenue, in its wisdom, has affirmed the said judgment and order of the first Appellate Court. Mr. Sandhu, learned Counsel for the petitioners, could not satisfy the Court, that once the issues had been framed and evidence thereon had been led by the petitioners and respondent''s defence had been closed for not adducing evidence inspite of ample opportunities, why the trial Court could not look into the issues framed by it. Thus, in the facts and circumstances of the case, the order of remand seems to be justified and no interference is called for.

The first Appellate Court has directed the trial Court to decide the issues afresh after giving opportunity to the parties to lead evidence. Such a course was not permissible for the reason that once ample opportunities had been given to the respondent-defendants, they did not adduce any evidence and their defence had been closed, the respondents cannot be permitted to lead evidence for the reason that an order of remand cannot be passed to provide a party a fresh opportunity of adducing evidence as it would amount to re-trial of the suit on fresh evidence, which is not permissible in law except in a very rare circumstances where there had been no proper or regular trial and prejudice has thereby been caused to a party. It is also settled legal proposition that mere fact that the evidence on record is not sufficient to enable the Court to come to define finding on the point in issue, is not sufficient to remand the case unless the party establishes that it did not have the opportunity to adduced the evidence.

Thus, in view of the above, the petition is disposed of finally with the directions that the learned trial Court shall decide the case afresh on the basis of the evidence already led by the parties without giving any opportunity of adducing evidence to either of the parties and shall record finding on each issue and deliver the judgment and decree within a period of three months from the date of filing the certified copy of this judgment and order before him, which petitioners undertake to file within the period of two weeks from today. There shall be no order as to costs.