Partly allowed

Mohan Singh and Others v. Amarjit Kaur and Others

Punjab & Haryana HC10 Dec 2008SAO/29/2006

Case brief

AI extract

What is this about?

The Single Judge allowed appeals regarding civil procedure on remand. The Court held the first appellate Court erred in setting aside the trial Court's entire judgment and ordering a de novo trial. Instead, the Court directed the trial Court to record evidence on additional issues under Order 41 Rule 25 CPC within three months.

What did the court decide?

Orders of Additional District Judge Nawanshah set aside; appeals restored; trial court directed to record evidence on framed additional issues within three months; parties to appear for further hearin

Mohan Singh and Others Vs Amarjit Kaur and Others — Property and Title | Punjab & Haryana HC (2008)

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SAO No.29 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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SAO No.29 of 2006 Date of Decision: 10.12.2008

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Mohan Singh and another

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....Appellants

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Vs.

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Amarjit Kaur @ Amarjit and others ....Respondents

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CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA

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Present : Mr.Kanwaljit Singh, Sr. Advocate with Mr.V.Paneja, Advocate for the appellants. Mr.Sandeep Jain, Advocate for the respondents.

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RAJIVE BHALLA, J (Oral)

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This order shall dispose of SAO Nos.29 to 31 of 2006, as they involve common questions of law and fact.

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The respondents herein filed three suits for possession of suit land, described in detail in the plaint, alleging that they were owners having succeeded to the estate of Amar Singh etc. The appellants opposed the suit by asserting that they had purchased the suit land from Nasib Singh, general power of attorney of respondent no.1. The learned trial Court dismissed the suit. The first appellate Court accepted the appeal, set aside the judgement and decree passed by the trial Court and remanded the matter to the trial Court for a fresh adjudication on the ground that the trial Court has failed to frame relevant issues, relating to the execution of the general power of attorney and the sale deeds.

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SAO No.29 of 2006

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Counsel for the appellants submits that even if the trial Court has failed to frame material issues, the first appellate Court instead of setting aside the trial Court's judgement in its entirety, should have after framing additional issues called upon the trial Court to submit a report under Order 41 Rule 25 of the CPC. It is submitted that by setting aside the trial Court's entire judgement, the first appellate Court has ordered a denovo trial without setting aside the findings recorded by the trial Court on other issues.

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Counsel for the respondents, however, submits that as crucial issues were not framed by the trial Court, its entire judgement stand vitiated in its entirety. As a result, the first appellate Court was justified in setting aside the judgement and remanding the case to the trial Court for adjudication afresh.

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I have heard learned counsel for the parties, perused the judgement passed by the trial Court, as also the order passed by the first appellate Court.

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The first appellate Court after holding that the trial Court had failed to frame material issues, remanded the case to the trial Court after framing the following additional issues :-

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“1.Whether the plaintiff no.1 Amarjit Kaur executed the General Power of Attorney, in favour of Nasib Singh dated 31.3.1981. If so, its effect ? OPD 1 & 2.

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Whether Nasib Singh acting on the basis of said power of attorney dated 31.3.1981, executed sale deed dated 12.3.1982, as alleged in the written statement ?OPD 1 & 2.

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Whether plaintiff no.2, Charanjit Kaur also executed sale

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SAO No.29 of 2006

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deed in favour of defendants no.1 and 2 dated 25.5.1982. If so, its effect ? OPD. 1.”

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As the dispute emanates from sale deeds executed pursuant to a general power of attorney, the first appellate Court was right in framing issues, in respect thereof. However, after framing additional issues, the first appellate Court, should have directed the trial Court to record evidence and thereafter submit its findings in terms of Order 41 Rule 25 of the Code. Instead the first appellate Court remitted the case for a fresh adjudication to the trial Court. The power of remand should be exercised sparingly, in the rarest of rare cases and only where the appellate Court finds itself unable to record a judgement without calling upon the trial Court to decide the matter afresh. The first appellate Court remanded the case in a casual and perfunctory manner without considering the course prescribed under Order 41 Rule 25 of the Code.

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In view of what has been stated herein above, the appeals are allowed. The orders dated 14.9.2006 passed by the Additional District Judge, Nawanshahar are set aside and the appeals filed before the Additional District Judge, Nawanshahar are restored to his Court. The Additional Civil Judge (Senior Division), Balachaur is directed to record evidence on additional issues framed by the first appellate Court and submit a report within a period of three months from the date of receipt of a certified copy of this order. It is also made clear that the trial Court may in the exercise of its discretion, dispense with further evidence if in its opinion there is sufficient evidence on record.

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Parties are directed to appear before the Additional Civil Judge

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SAO No.29 of 2006

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(Senior Division) Balachaur on 2.2.2009.

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10.12.2008 (RAJIVE BHALLA) GS JUDGE

Mohan Singh and Others v. Amarjit Kaur and Others

Case brief

What is this about?

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Mohan Singh and Others v. Amarjit Kaur and Others

Case brief

What is this about?

What did the court decide?

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