Brahmwati And Another vs Vineet Kumar And Others

Ravindra Maithani, J

Challenge in this Writ Petition is the order dated 29.11.2019 passed in Civil Appeal No. 40 of 2012 “Smt. Bhramwati and others v. Vineet

Kumar and others†passed by the Fourth Additional District and Sessions Judge, Haridwar (for short the “Appealâ€). By the impugned order, the

learned Court below recalled its earlier order dated 25.04.2018, by which an issue was remitted for trial to the Court below under Order 41 Rule 25 of

the Code of Civil Procedure, 1908 (for short the “Codeâ€​).

Facts, necessary to resolve the controversy, are in a narrow compass. Respondents filed Original Suit No. 86 of 2002 “Vineet Kumar v. Kashi

Ram†in the Court of the Civil Judge (Junior Division), Haridwar (for short the “Suitâ€). The Suit was decreed. The petitioners herein, who were

respondents in the Suit, preferred an appeal there-against. In the appeal a plea for framing additional issues was taken, which was not allowed.

Therefore, the petitioners filed Writ Petition (M/S) No. 2673 of 2015 “Smt. Bhramwati and others v. Vineet Kumar and others†before this Court

(for short the “Writ Petitionâ€​). The Writ Petition was allowed by this Court vide its order dated 21.03.2017 and the Court directed as hereunder :-

“In view of above, the impugned order is set aside. The lower appellate court is directed to frame the aforesaid legal issue and permit the parties to

lead their evidence in the appellate court itself, if required, and accordingly decide the same (appeal) at an earliest possible. The lower appellate court

will not grant unnecessary adjournments to either of the parties. Consequent thereto, the writ petition stands disposed of.â€​

In the appeal, it appears that on 19.03.2018 an application, under Order 41 Rule 25 of the Code read with Section 151 of the Code, was moved by

the petitioners with the request that the additional issue, as was framed, be remitted to the trial Court for decision. By the order dated 25.04.2018

passed in the Appeal, the said application was allowed. The additional issue, as was framed pursuant to the order dated 21.03.2017 passed in the Writ

Petition, was remitted for decision to the trial Court. In trial Court evidence was adduced on the additional issue and, by an order dated 20.08.2018, the

additional issue was decided. The Appeal was heard and judgment reserved.

On 29.11.2019, by the impugned order passed in the Appeal, it was held that the Hon’ble High Court, by its order dated 21.03.2017, had

directed the appellate Court to take evidence and decide the additional issue, and the appellate Court committed an error on 25.04.2018 by allowing the

application of the petitioners while remitting the additional issue for trial to the Court below. It is this order, which is under challenge in this Writ

Petition.

Heard learned counsel for the parties.

Mr. Siddhartha Singh, learned counsel for the petitioners, has raised the following points in his arguments :-

(i) The order passed in the Writ Petition dated 21.03.2017 has been substantially complied with.

(ii) While passing the impugned order, opportunity of hearing was not given to the petitioners.

(iii) A Court, on its own, cannot recall its earlier order.

Learned counsel for the petitioners would submit that in the trial Court, on the additional issue, evidence has been adduced and witnesses cross-

examined. Now if again the appellate Court is required to adduce evidence, the meaning of cross-examination would come to a level insignificant.

Learned counsel would submit that, at the most, what can be done now is that the appellate Court may be directed to decide the additional issue based

on the evidence, which had already been adduced in the trial Court.

On the other hand, Mr. Tapan Singh, learned counsel for respondent no. 1, would submit that the impugned order is in accordance with the order

dated 21.03.2017 passed in the Writ Petition. It is also argued that at one stage in the appeal an issue was raised with regard to the right to begin,

which was taken up to this Court in Writ Petition (M/S) No. 2265 of 2017 “Smt. Bhramwati v. Vineet Kumar†(for short the “second Writ

Petitionâ€), which was decided on 03.01.2018. According to learned counsel for respondent no. 1, in the second Writ Petition, directions were issued

to the appellate Court to decide the additional issue as under :-

“In that view of the matter, the writ petition is allowed. The impugned order dated 19.08.2017, as passed by the Lower Appellate Court in Civil

Appeal No. 40 of 2012, Bharamwati and others Vs. Vineet Kumar and others allowing the application of the plaintiff/respondent under Order 18 Rule

3 of the CPC is quashed. The plaintiff respondent, if he so chooses may lead his evidence first and, thereafter, the Appellate Court will proceeds to

scrutinize the issue on limitation exclusively in accordance with law.â€​

It is argued by the learned counsel for respondent no. 1 that a mistake was committed, while remitting the additional issue to the trial Court, and the

appellate Court has now rectified it. Therefore, the impugned order does not warrant any interference.

It is true that substantial justice has its own place and procedure should not come in its way, but it has to be seen in this case that whether it is a

procedural irregularity or something else. In so far as recalling of an order by a Court, on its own, is concerned, it depends on the circumstances under

which such action has been taken by the Court. If an order is obtained by a fraud and subsequently the Court comes to know of the fraud, perhaps the

Court has its own authority to undo the wrong. Similarly, if the Court commits some mistake and subsequently it is brought to the notice of the Court,

perhaps the Court does not need any application or any authority separately to undo that mistake.

When issues are re-settled at the stage of appeal, what will be the course of action is separately enumerated under Order 41 Rule 24 and 25 of the

Code. According to Order 41 Rule 24 of the Code, the appellate Court may, after re-settling the issues, finally determine the suit. According to Order

41 Rule 25 of the Code when an additional issue is framed, the same may also be remitted to the trial Court for decision.

In the instant case, in fact, the additional issue was not framed by the appellate Court on its own. It was done under the direction dated 21.03.2017

issued in the Writ Petition, which has already been quoted hereinbefore, whereby the appellate Court was directed to frame the legal issue “and

permit the parties to lead their evidence in the appellate court itself, if required, and accordingly decide the same (appeal) at the earliest

possibleâ€. Not only this, in the second Writ Petition also, on 03.01.2018, this Court directed parties to lead evidence first and, thereafter, it was

directed that “the Appellate Court will proceed to scrutinize the issue on limitation exclusively in accordance with lawâ€. In fact after the

decision in the Writ Petition on 21.03.2017, an application, under Order 41 Rule 25 and 151 of the Code, was moved by the petitioners. This application

(Annexure-3 to the Writ Petition) was allowed by the appellate Court on 25.04.2018, but in this order the appellate Court has not discussed the order

dated 21.03.2017 passed in the Writ Petition, in which the appellate Court was directed to adduce evidence and decide the additional issue.

Apparently this order dated 25.04.2018 is in total defiance of the directions of this Court passed in the Writ Petition on 21.03.2017. This was a

mistake committed by the appellate Court on 25.04.2018. What happens subsequently was perpetuating the mistake committed by the appellate Court

on 25.04.2018. When the matter was finally heard, the Court came to know that a mistake had been committed by it, the Court has its own authority

to undo the mistake which it had committed by passing the order dated 25.04.2018. There is no question of giving any opportunity of hearing to the

parties. It was not required at all in this case. This order dated 25.04.2018 was in violation of the directions of this Court dated 21.03.2017 and

03.01.2018 passed in the Writ Petition and the second Writ Petition respectively.

It is true that the issue has once been decided and it is also true that, if the parties are required to adduce evidence at the appellate stage again on

the same issue, it may cause inconvenience to any of the parties, but then this Court cannot devise any method so as to uphold this Court’s order

dated 21.03.2017, passed in the Writ Petition, without disturbing the actions, which took place pursuant to the order dated 25.04.2018. Therefore, this

Court is of the view that the appellate Court ought to have decided the additional issue in accordance with the order dated 21.03.2017 passed in the

Writ Petition and in no other manner. As stated order dated 25.04.2018 was passed by the appellate Court in violation of the direction of this Court in

the Writ Petitions as discussed hereinabove. The appellate Court rectified this mistake by passing the impugned order. Therefore, this Court is of the

view that, by passing the impugned order, no illegality has been committed.

There is no substance in this Writ Petition and it deserves to be dismissed at the stage of admission itself.

The Writ Petition is, accordingly, dismissed.