ITEM NO.6                 COURT NO.4               SECTION IVB

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).13933/2007 (From the judgement and order dated 28/10/2006 in  SAO No. 5/1994  of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

SUMER CHAND                                          Petitioner(s)

                     VERSUS

MEWA RAM & ORS.                                      Respondent(s)

Date: 04/12/2008  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE S.B. SINHA         HON'BLE MR. JUSTICE CYRIAC JOSEPH

For Petitioner(s)    Mr.Jasbir Singh Malik,Adv.      Mr. Praveen Lata, Adv.      Mr.Deepak Aggarwal,Adv.

                    Mr. S.C.Verma, Adv.                      Mr. S.K. Sabharwal,Adv.

For Respondent(s)    Mr. Sachin Jain, Adv.                      Dr. Kailash Chand,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted.

The appeal is dismissed in terms of the signed order. No costs.

        [ Meenu Sethi ]               [ Pushap Lata Bhardwaj ]       A.R.-cum -P.S.                   Court Master

Signed order is placed on the file

               IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL   APPEAL NO. 7112  OF 2008 (Arising out of S.L.P. (C) No.13933/2007)

   Sumer Chand          ...Appellant

Versus

   Mewa Ram & Ors.        ...Respondents                      

O  R  D  E  R

Leave granted.

Defendant in a suit for  redemption of mortgage is before us aggrieved by

and dissatisfied with the  judgment and order dated 28.10.2006 passed by a learned

Single Judge of the  High Court of Punjab and Haryana at Chandigarh in S.A.No. 5

of 1994 dismissing the appeal  preferred by the appellant herein from a judgment and

order  dated  13.1.1994  passed  by  the  Additional  District  Judge,  Kurukshetra

remanding the matter back to the trial Court for fresh decision permitting the parties

to lead more evidence on a joint request made by the learned counsel for the parties.

Plaintiffs-respondents were the purchaser of the land in suit by reason of

registered deed of sale dated 22.5.1973 from one Babu Ram. Babu Ram had executed

a deed of mortgage in favour of the appellant herein  by a registered deed of mortgage

dated 16.6.1970.  

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A suit for redemption of mortgage was filed by the respondents herein on

18.3.1987. However, according to the respondents a mistake occurred in regard to the

area of the mortgaged property vis-a-vis the suit land.

Keeping  in  view  the  aforementioned  mistake  which  had

occurred in furnishing proper description of the property in suit, the learned trial

Court dismissed the suit opining:

"...The  revenue  record  on  the  file  does  not  show  that  the agricultural land comprised in Khasra No.60/25/2 and 73/4/2 was ever changed as Khasra Nos. 60/25/25/2 or 73/4/2/4, after close perusal of the entire evidence on the file,  I  came  to  the  conclusion  that  the  plaintiffs  have  prayed  in  this  case  for redemption of only 13 kanals 12 marlas of land out of the total land measuring 21 kanals 4 marlas, allotted in lieu of the land detailed in para No.1 of the plaint."

An  appeal  was  preferred  thereagainst  before  the  Appellate

Court. An application for amendment of the plaint in terms of Order VI Rule 17 of

the Code of Civil  Procedure was also filed which was allowed. Appellant was also

permitted to file additional written statement.

In view of  the aforementioned subsequent events, the learned

counsel  for  the  parties  jointly  agreed  that  in  view  of  the  amended  pleadings,

additional issues were

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required to be framed and in that view of the matter, the matter was remanded back

to the trial Court by the learned Additional District Judge, Kurukshetra by an order

dated 13.1.1994 directing:

"  2.  Heard,  the  judgment  and  decree  of  the  learned  Lower  Court  of

1.6.1990 is set aside.The case is remanded to the learned Lower Court for rendering the  decision  afresh  after  receiving  more  evidence  of  the  parties  if  necessary particularly in the light of the additional issues framed by this Court vide order dated 23.12.1993.A copy of the order dated 23.12.1993 be also sent to the learned Lower Court in this regard. There is an application  of  the  respondents  for  framing  further  additional  issues  and  for permission to lead the evidence. The application be also sent to the learned Lower Court which would decide in this application before proceeding further in the matter. However,  the  learned Lower Court  would  decide  the  matter within  three months from today. Not more than two opportunities to each of the party in case of necessity of evidence to be led by the parties would be given to them. The file be sent to the learned Lower Court today forthwith. Appeal file be consigned."

It was that order which was the subject matter of the second appeal  before

the High Court.

Learned counsel appearing on behalf of the appellant would submit that

without any instructions from the appellant, the learned advocate did not have the

requisite authority to request for remand of the matter back to the trial Court.  

The question raised by the learned counsel for the appellant is squarely

covered  by a judgment of this  Court in Employees  in relation to Monoharbahal

Colliery, Calcutta Vs. K.N. Mishra & Ors. - AIR 1975 SC 1632, wherein this Court

categorically held that even a counsel who had filed a Vakalatnama has the requisite

authority even to enter into a compromise.

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Even otherwise, when the pleadings were amended and additional issues

are framed, the Appellate Court in exercise of its jurisdiction under Order XLI Rule

23 A of the Code of Civil Procedure was entitled to pass the impugned judgment for

the retrial of the suit.

With  the  aforementioned  observations  and  directions,  the

appeal is dismissed. No costs.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, December 4, 2008.

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