H.P. Housing Board and Urban Development Authority vs B.D. Pathak

Dev Darshan Sud, J.—The Appellant is aggrieved by the order passed by learned Additional District Judge, Solan, setting aside the judgment and decree of the learned trial Court and remand the case for decision afresh.

Before the learned trial Court, seven issues were framed. Issue No. 4 releated to the valuation of the suit for the purpose of Court fee and jurisdiction. The learned trial Court, on the evidence on record, dismissed the suit. The learned appellate Court notes that an application under Order VII Rule 11,Code of Civil Procedure , was filed on behalf of the Defendant before the learned trial Court praying for rejection on the ground that the Plaintiff has claimed for charges to the tune of Rs. 100/- per day w.e.f. 21.8.2001 till the passing of the decree. The Court holds that the learned trial Court has decided this issue in favour of the Defendant. The Court further held that the proper valuation of the suit has not been determined. The Appellate Court then proceeds that in these circumstances, without going into the merits of the case as urged, it would be in the interest of justice in case, judgment is set aside and suit remanded for decision afresh in accordance with law after giving both the parties an opportunity to lead evidence in support of this issue.

The Plaintiff-Appellant is now in appeal before this Court and challenged the wholesale remand by the Court. The Court has relied upon the decision of this Court in Satya Devi and Others Vs. Chuni Lal, It is now well settled that wholesale remand cannot be resorted to and it is to be avoided, if the learned Appellate Court though that the findings arrived it on this point are not satisfactory, then it could have been called for findings on that issue for the trial Court before deciding on the other issues. I do not find that in the facts and circumstances in this case justifying the order passed by the learned Appellate Court. In these circumstances, this appeal is allowed with the following directions:

Learned Additional District Judge, Solan, shall re-admit the appeal on its record.

A direction is issued that the learned trial Court shall give its findings on this issue as directed by the learned Appellate Court, after granting an opportunity to both the parties to lead evidence in support of their respective contentions.

Learned Appellate Court shall forward its findings before the learned trial Court and in this event, thereafter, the case shall proceed afresh in accordance with law.

The parties shall appear before the learned Additional District Judge, Solan, on 30th June, 2011. Registry is directed to send the record to learned Additional District Judge, Solan, immediately. Appeal disposed of accordingly. There shall be no order as to costs.