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Judgment
Sudhanshu Dhulia, J.—Mr. Sarvesh Agarwal, Advocate, present for the appellants/defendants.
Heard the learned counsel for the appellants and perused the record.
This is defendants'' second appeal. A suit for permanent injunction was filed before the learned Civil Judge (Senior Division), Nainital which was decreed in favour of the plaintiffs. Appeal filed against the said order, was also dismissed. In sum and substance, the only substantial question of law which the counsel for the appellants has raised before this Court, is that under Order 41 Rule 25 of the Code of Civil Procedure, if the first appellate court had framed new issues, he was liable to send the matter back to the trial court to give finding on such issues. Order 41 Rule 25 of the CPC reads as under:-
Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extend by it from time to time.
This submission of the learned counsel for the appellants is totally wrong as under Order 41 Rule 24 of the Code of Civil Procedure, the first appellate court has got full power to finally determine the suit. Order 41 Rule 24 of the CPC reads as under:-
Where evidence on record sufficient, Appellate Court may determine case finally.-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
Under the aforesaid provision if the evidence on the record is sufficient which can enable the Appellate Court to pronounce judgment, the Appellate Court may, even after resettling the issues, if necessary, finally decide the case, notwithstanding that the trial court (from whose decree the appeal is preferred), has proceeded wholly upon some other ground than on which the Appellate Court proceeds.
No other question of law, much any substantial question of law, is made out. The second appeal is, therefore, dismissed in limine.