SBCMA No.2715/2007
Smt. Kamla & Anr. Vs. Smt. Kalpana
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SBCMA No.2715/2007
Smt. Kamla & Anr. Vs. Smt. Kalpana
DATE OF ORDER : - 18.9.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.SL Jain, for the appellant.
Mr.Vijay Purohit, for the respondents.
Heard learned counsel for the parties.
The appellants are aggrieved against the order dated
30th Nov., 2007 passed by the court of District Judge,
Dungarpur whereby the appellate court set aside the
judgment and decree of the trial court dated 11.10.2004 by
which the trial court dismissed the plaintiff’s-respondent’s
suit. The appellate court after setting aside the decree
dated 11.10.2004 remanded the matter back to the trial
court after framing and re-casting the issues with
opportunity to both the parties to produce evidence.
According to learned counsel for the appellants the
SBCMA No.2715/2007
Smt. Kamla & Anr. Vs. Smt. Kalpana
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pleadings were completed, the issues were framed by the
trial court, there was no objection of any party that the
issues were not framed properly, both the parties knowing it
well what is the dispute and what are the issues involved,
led evidence and, thereafter, the trial court passed the
judgment and decree dated 11.10.2004. Before the first
appellate court, the pleadings and the evidence were
available and on the basis of the pleadings and evidence,
the appellate court itself could have decided the appeal, but
without any lawful reason, it re-caste and re-framed the
issues and remanded the matter and reopened the entire
trial. It is submitted that it was not even prayer of the
respondent in the memo of appeal before the first appellate
court. It is also submitted that it is not the case of the
plaintiff-respondent before the first appellate court that
because of wrong framing of issues or because of not
framing necessary issues any prejudice has been caused to
the plaintiff- respondent.
Learned counsel for the respondent submitted that the
SBCMA No.2715/2007
Smt. Kamla & Anr. Vs. Smt. Kalpana
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appellate court considered the entire facts of the case in
detail and thereafter, reached to the conclusion that the
issues were not properly framed by the trial court and,
therefore, set aside the judgment and decree, which is
clear from the reasons given by the appellate court in the
order dated 30th Nov., 2007.
I perused the pleadings of the parties and I am of the
view that there is no reason for re-trial of the entire suit
merely on the ground that trial court has not framed the
issues properly. There must be more lawful reason for
retrial. If issues were not framed in proper language but
parties understood the case and issues involved and led
evidence and no prejudice has been caused to parties, the
appellate court should not remand the matter to the trial
court. In a case issues are not properly framed and it
results into prejudice to the party then only there may arise
question of re-trial. When sufficient evidence is available on
record before the appellate court coming from the trial court
and on the basis of evidence, the appeal and the suit itself
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Smt. Kamla & Anr. Vs. Smt. Kalpana
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can be decided, the appellate court if wants to frame the
issues afresh for the purpose of deciding the appeal, the
appellate court is empowered to do so.
In view of the above reasons, the appellate court’s
order for remand of suit and setting aside of the decree
dated 11.10.2004 is set aside. Since the appellate court
was of the view that the suit should have been decided by
framing the issues as framed by the appellate court
therefore, the appellate court itself may decide the suit
according to the issues framed by the first appellate court
itself as none of the party sought opportunity to produce
more evidence and looking to the facts of the case, there is
no reason for giving opportunity to the party, who
knowingly have produced the evidence with respect to their
claim and counter claim.
Hence, the appeal of the appellant is partly allowed.
The order of the first appellate court setting aside the
judgment and decree of the trial court dated 11.10.2004
and the remanding matter to the trial court is set aside.
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Smt. Kamla & Anr. Vs. Smt. Kalpana
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The appellate court may decide the appeal on merits. Both
the parties are directed to remain present before the first
appellate court on 14.10.2008.
(PRAKASH TATIA), J.
c.p.goyal/-