1. Suit for property identification — High Court remand for fresh decision on grounds of failure to frame issues regarding property identification. (Para 4 )
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2000 Supreme(SC) 904
2000(6) Supreme 457
SUPREME COURT OF INDIA
S.B. Majmudar & Y.K. Sabharwal, JJ.
J. Lingaiah & Ors. -Appellant
versus
G. Hanumanthappa & Ors. -Respondents
Civil Appeal No. 3028 of 2000
(Arising out of SLP (C) No. 15582 of 1999)
Decided on 28-4-2000
Important Points
The Supreme Court held that a remand order based on the alleged failure to frame a specific issue is unsustainable if the trial court had already framed and decided that issue. Consequently, the High Court's remand order was set aside, and the appeal was restored for decision on merits.
Subject
Civil Law - Property Dispute
Act Referred
Headnote
Code of Civil Procedure, 1908-Section 96 r/w Order XLI, Rule 23-First appeal-Remand of case on ground that trial Court did not frame issue to identify property-Not justified-Records revealed proper issue framed by trial Court-Impugned order of High Court set aside-Appeal restored to High Court to decide case on merit.
Legal Category Hierarchy
Table of Contents
2. Contention that the High Court overlooked existing issues and findings on property identification and that no prayer for remand was made. (Para 6 )
3. Trial court had already framed and decided issues regarding the exact identification of the property and its acquisition, which the High Court overlooked. (Para 4 , 5 , 6 )
4. Remand order based on failure to frame a specific issue is unsustainable if the trial court had already framed and decided that issue. (Para 4 , 5 , 6 )
5. Appeal allowed — High Court order set aside — Regular First Appeal restored for re-decision on merits. (Para 6 )
6. When is a remand order based on the absence of a framed issue improper?
A remand order is improper if the trial court had already framed the relevant issue and arrived at findings based on evidence, which the appellate court failed to note. (Para 4 , 5 , 6 )
ORDER
Leave granted.
2. We have heard learned Counsel for the Appellants and learned Counsel appearing for Respondent Nos. 1 to 3 who are the contesting Respondents finally in this appeal.
3. Respondent No. 5 who is a contesting Respondent though served, has not thought it fit to appear and contest the present proceedings. Respondent No. 4 who is deemed to be served has not thought it fit to appear and contest the proceedings though 30 days are over since the issuance of notice to him. Respondent Nos. 6 and 9 who are reported dead are merely proforma Respondents. Their names shall stand struck off from the record as no application for bringing their legal representatives on record is filed so far by the Appellants. Rest of the Respondents are proforma Respondents.
4. In a suit of the year 1980, the High Court by its impugned judgment has remanded the proceedings for fresh decision of the trial Court. The reasoning adopted by the High Court for passing the remand order is that no issue was framed about the exact identification of the property. When we turn to page 40 of the paper book we find that the trial Court has already framed one issue to that effect issue No. 1 reads as under.
"1. Whether the suit schedule property comprises in Sy. No. 26.2/B or in Sy. No. 4 of Vyalikaval Village?"
5. Not only that, issue No. 3 was framed to the following effect.
"3. Whether the defendant No. 2 and others prove that the entire schedule property was acquired for formation of Vyalikaval Extension by CITB?"
6. Unfortunately, the High Court has not noted that such issues were not only framed but on evidence the trial Court arrived at findings thereon. When we turn to paragraph 3 of the impugned judgment, we find as if the Respondents had prayed for such a remand order before the High Court though on a reading of the whole paragraph it does not appear to be so. Learned Counsel for the Appellants - the Respondents before the High Court submitted that such a prayer was never made before the High Court. For all these reasons, therefore, the appeal is allowed. The impugned order of the High Court is set aside. Regular First Appeal No. 172 of 1992 is restored to the file of the High Court with a request to redecide the same on merits in accordance with law after hearing the parties. We express no opinion on the merits of the controversy between the parties. No costs.
(C.R.) Appeal allowed.
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