Remanded

Suresh Kumar v. Tarawati

Himachal Pradesh HC8 Jul 2024FAO/185/2009

Case brief

AI extract

What is this about?

In an appeal being proceeded ex parte due to failure to appear, the Court addressed a jurisdictional application. It held that the trial Court erred in declaring lack of jurisdiction without deciding other framed issues, relying on Puran Chand, and remanded for complete adjudication.

What did the court decide?

Judgment of the trial Court set aside; matter remanded to the trial Court for complete adjudication on all issues.

Suresh Kumar Vs Tarawati — Execution and Attachment | Himachal Pradesh HC (2024)

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Suresh Kumar and another vs. Tarawati and others

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FAO No. 185 of 2009

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08.07.2024 Present:

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Ms. Dhanwanti, Advocate, vice Mr. Sanjay Bhardwaj, Advocate, for the appellants.

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None for respondents No. 1 to 4, 6 to 10 and 13 to 20.

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Respondents No. 5(a), 11 and 12 are already ex parte.

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CMP No. 148 of 2012

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Learned vice counsel appearing on behalf of the appellants has filed an application under Section 151 for placing on record certain information. The application is taken on record. The same be registered and placed at an appropriate place.

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Sh. J.L. Bhardwaj, Advocate had been duly appointed as a counsel to appear on behalf of the applicants/appellants in the case at hand. For doing the same, the learned counsel had filed an appropriate power of attorney. During the pendency of the matter, the counsel so engaged by the applicants/appellants had been designated as a Senior Advocate.

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Post being appointed as a Senior Advocate, time was granted by this Court to file a fresh power of attorney on behalf of the present applicants/appellants. Leaned counsel appearing on behalf of the applicants/appellants has placed on record Annexures A-1 and A-2 i.e. registered letters alongwith postal receipt thereof, whereby a request was made from the office of Sh. J.L. Bhardwaj, Senior Advocate for filing a fresh power of

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attorney. Despite receipt of the same, no steps have been taken by the applicants for appointing an Advocate to pursue their appeal before this Court.

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In view thereof, by virtue of documents placed alongwith the present application, power of attorney entered into between the applicants-appellants and Sh. J.L. Bhardwaj, Advocate as he then was, stands determined. Since the applicants/appellants on account of letters Annexures A-1 and A2, registered letters dated 11.12.2023 and 18.03.2024, are aware of the existence of the present proceedings before this Court and are not taking any steps to engage a counsel to pursue the matter, hence, they are proceeded against ex parte.

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FAO No. 185 of 2009

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Perused the pleadings in the case at hand. The present appellants were the defendants before the learned Trial Court. Hence, for the purpose of the present appeal, they shall be referred to as the appellants.

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The suit instituted by the present

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respondents/plaintiffs before the trial Court was a suit for declaration and injunction. In the same, 11 issues were framed for adjudication on 10.11.1999. Issue No. 8 pertained to the jurisdiction of the Trial Court. Issue No.8 was decided vide judgment dated 11.04.2008 as the sole issue. Since the Trial Court held qua issue No.8 that it had no jurisdiction to enter into

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the controversy, hence, the trial Court did not return any findings with respect to the balance 9 issues framed by the trial Court on 10.11.1999.

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Feeling aggrieved thereof, the present respondentsplaintiffs before the trial Court assailed the judgment dated 11.04.2008 passed by the trial Court. The First Appellate Court post applying ratio of judgment reported in latest Himachal Law General 2008 High Court H.P. 417, titled Puran Chand vs. Pat Ram, allowed the appeal and remanded the matter to the trial Court to pass a judgment with respect to all the issues as had been determined by the trial Court on 10.11.1999.

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On a perusal of the judgment so relied upon by the first Appellate Court, it is evident that the first Appellate Court had correctly appreciated the position of law. Once the trial Court had framed 10 issues for adjudication, then it was incumbent in law on the trial Court to have adjudicated with respect to all issues. It is only in case that if a preliminary issue was framed with respect to jurisdiction of the Court that the trial Court would have been obligated to decide the same first.

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Since in the case at hand, 10 issues have been framed, hence as per the law laid down, there is infirmity in the judgment passed by the trial Court. The judgment is set aside and the matter is remanded back to the trial Court for a complete adjudication on the issues so framed by the trial Court vide order

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dated 10.11.1999. The matter be listed before the trial Court on 02.08.2024.

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Fresh notices be issued to the parties. Since in the case at hand the suit was filed in the year 1996, therefore, the hearing of the matter be expedited and the same be disposed of as early as possible subject to the convenience of the trial Court.

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(Bipin C. Negi) Judge

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July 08, 2024 tarun

Suresh Kumar v. Tarawati

Case brief

What is this about?

What did the court decide?

Suresh Kumar v. Tarawati

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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