Shyam Kishore v. M.C.D.

1. This regular second appeal filed under Section 100 CPC impugns the judgment of the first appellate court dated 12.2.2007 whereby the appellate court set aside the judgment and decree of the trial court dated 5.10.1985. The suit was a suit for injunction filed by the appellants-plaintiffs challenging the enhancement of the property tax.

2. The trial court by the judgment and decree dated 5.10.1985 holding the suit to be maintainable in civil court has passed the judgment on merits holding that the property taxes as claimed by the respondent are not payable. 2014:DHC:153 The trial court had decided all issues as were required under Order 14 Rule 2 CPC. Appellate court however by its impugned judgment has not dealt with all those issues which were issues of merit and it only dismissed the suit as being not maintainable in the civil court as also that the same was barred by limitation.

3. Since the appellate court is the first court which has to reapprise the facts of finding and law, it is necessary that the appellate court has to in terms of Order14 Rule[2] CPC give its judgment on all the issues which had arisen in the suit, and additional issues, if any which may arise in the appeal, once the position is that all the issues are contested issues.

4. In view of the above, since the judgment of the appellate court is not in accordance with the requirement of law to give a judgment on all issues which were decided by the trial court, it is agreed and accordingly the impugned judgment of the appellate court dated 12.2.2007 is set aside for the purpose of enabling the appellate court to give a judgment on all issues which have been decided in the suit. If there are any additional issues of abatement which arise on account of death of any of the party to the appeal, the appellate court can also decide this issue.

5. Since the matter is remanded back for decision on all issues, the appellate court will now decide the appeal afresh uninfluenced by any observations made in the impugned judgment dated 12.2.2007.

6. So far as the grant of interim orders to either of the parties is concerned, the same will be examined by the appellate court on an application being filed and such an application if filed would be decided in accordance with law.

7. The appeal is allowed and disposed of to the limited extent in terms of the aforesaid observations.

8. Parties to appear before the District & Sessions Judge, Central, Tis Hazari Courts, Delhi on 10th February, 2014 and the District and Sessions Judge will mark the first appeal for decision to a competent court in accordance with law.

9. Trial court record be sent back so as to be available before the District and Sessions Judge on the date fixed.

JANUARY 09, 2014 VALMIKI J. MEHTA, J. ib