Kuldeep Singh v. Yashpal Sehrawat

1. These Regular Second Appeals arise from the impugned judgment of the First Appellate Court dated 17.11.2015. The first appeal 2017:DHC:8542 which was decided by the impugned judgment was filed by the plaintiffs in the suit. Plaintiffs had filed the first appeal impugning the judgment ofthe Trial Court dated 21.3.2015 by which trial court has dismissed the suit for declaration and injunction filed by the plaintiffs on the ground that the agreement to sell which is challenged by the plaintiffs will only operate to the extent ofundivided bhoomidari interest ofthe defendant no.2 in the suit and the agreement to sell entered into between the defendant no.2 as aseller and defendant no.l as buyer will not operate to sell aspecific share ofthe co-owned land ofthe plaintiffs and the defendant no.2 to the defendant no.l. Respondents in these appeals are the plaintiffs in the suit and appellants in these appeals arethe defendants inthesuit.

2. The scope ofhearing ofthe first appellate court hearing against ajudgment passed ofdismissal ofthe suit as not maintainable cannot extend to the decreeing ofthe suit by applying Order 12 Rule 6CPC. In the facts of the present case it is not as ifthe first appeal was filed by the plaintiffs after trial had been completed in the suit. By the judgment ofthe trial court dated 21.3.2015 suit was dismissed without trial and at the stage ofpleadings by holding the suit not to be maintainable. Ifsuch ajudgment ofthe trial court is set aside, then, by virtue of Order 41 Rule 23 CPC the suit has to be )> remanded to the trial court to decide all other issues which arise in the suit including after allowing parties to lead evidence if there are disputed questions of facts which require trial. Ofcourse, the suit can be decreed by the trial court even without trial if the ingredients of Order 12 Rule 6 CPC are satisfied qua one or more ofthe reliefs in the suit. 3- The first appellate court while decreeing the suit for injunction A, as per its judgment dated 17.11.2015 has acted beyond his jurisdiction because the first appellate court has acted as a trial court and has decided an issuewhich was not decided by the trial court.

4. During the course of arguments, it is agreed and these appeals are disposed of by setting aside both the judgments of the trial court dated 21.3.2015 and that of the first appellate court dated 17.11.2015, with the direction to the trial court that trial court will treat the suit as maintainable, however, whether or not plaintiffs are entitledto one or more reliefs claimed under Order 12 Rule 6 CPC or that the plaintiffs are not entitled to such of the reliefs either because of non-applicability of Order 12 Rule 6 CPC or the reliefs claimed can or cannot be granted after trial, then all such aspects will be decided by the trial court in accordance with law considering all the defences which have been putup by the appellants/defendants both on facts and law. Trial court will proceed from the stage of allowing the appellants/defendants to file their written statements to the amended plaint. This Court is making no observations one way or the other on the merits of ' the disputes for or against any ofthe parties and all the issues which require determmation in the suit will be decided by the trial court in accordance with law.

5. Since the suit, is revived, if there exists any exparte interim order in favour ofthe respondents/plaintiffs, the same will revive, subject of course to the decision ofthe grant or otherwise injunction in terms ofthe ^ application under Order 39 Rules 1 and 2 CPC which is filed by the respondents/plaintiffs and which will be decided by the trial court.

6. Parties to appear before the District &Sessions Judge, South West, Dwarka Courts, New Delhi on 29^^^ November, 2017 and the District &Sessions Judge will mark the suit for disposal in accordance with law and observations made in the present order, to acompetent court.

OCTOBER 17,2017 Ne VALMIKIJ. MEHTA, J