Karnataka High Court
Sri Seethappa vs Smt Lakshmamma on 9 March, 2017
Equivalent citations: 2017 (3) AKR 654
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
MISCELLANEOUS SECOND APPEAL NO.3/2016
BETWEEN:
SRI SEETHAPPA
S/O. SRI GIDDAPPA
AGED ABOUT 65 YEARS
RESIDING AT ANIKARAHALLI VILLAGE
MASTHI HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130.
...APPELLANT
(BY SRI T.N.VISWANATHA, ADV.)
AND:
SMT. LAKSHMAMMA
W/O. RAMAIAH
AGED ABOUT 55 YEARS
RESIDING AT ANIKARAHALLI VILLAGE
MASTHI HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130.
...RESPONDENT
(BY SRI B.ROOPESHA, ADV.)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.10.2015
PASSED IN R.A. NO.216/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MALUR, ALLOWING THE APPEAL AND
2
SETTING ASIDE THE JUDGMENT AND DECREE DATED
18.08.2009 PASSED IN O.S. NO.482/1995 ON THE FILE OF THE
I ADDL. CIVIL JUDGE (JR.DN.), MALUR, REMANDING THE
MATTER BACK TO THE TRIAL COURT WITH DIRECTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
O.S. No.482/1995 on the file of I Addl. Civil Judge (Jr. Dn.), Malur was instituted by Smt. Lakshmamma, W/o Ramaiah, against Smt. Maramma W/o late Venkatagiriyappa, to pass a decree for partition and separate possession by contending that the suit schedule properties are the properties of late Venkatagiriyappa and that she was taken in adoption by him. A declaration was sought that she is entitled for ½ share in all the items of suit schedule properties. Smt. Maramma, the sole defendant filed written statement and contended that the plaintiff was not adopted by Sri Venkatagiriyappa and as such she is not entitled to any share in the suit schedule properties. It was stated that she is the second wife of Venkatagiriyappa, during whose lifetime, Seethappa S/o 3 Giddappa was taken in adoption and that Venkatagiriyappa executed a Will dated 21.05.1980, wherein a bequeath was made in favour of the said Seethappa. Based on the pleadings issues were raised and the evidence having been adduced by both sides, the suit was decreed on 07.06.2002, entitling the plaintiff to ½ share in the suit schedule properties.
2. The defendant assailed the said decree in R.A. No.124/2002, on the file of Senior Civil Judge, Malur. The appeal having been assigned to the Fast Track Court - III at Malur, was allowed on 10.01.2006 and the case remanded. An additional issue was raised, the trial was directed to be held. The said Judgment was assailed in MSA No.105/2006 by the plaintiff. By a Judgment dated 26.06.2007, the appeal was dismissed with a direction to implead Seethappa, as a defendant in O.S. No.482/1995.
3. O.S. No.482/1995 having been taken up, I.A.VIII was filed under Order I Rule 10 of CPC to implead Seethappa as defendant No.2. Impleadment having been 4 permitted, Seethappa filed written statement on 10.07.2006. Additional issues were raised. I.A.XI was filed by defendant No.2, under Order 18 Rule 17 CPC to recall PWs.1 to 3 for cross-examination. The application was allowed on 10.08.2006 and the case posted to 24.08.2006 for cross-examination. The witnesses having not appeared even on 07.09.2006, 28.09.2006 and 16.11.2006, by reason of an order dated 14.12.2006, cross-examination of PWs.1 to 3 was taken as nil and the case posted for defendants' evidence by 15.02.2007. 2nd defendant got himself examined as DW-2 on 22.03.2007 and marked Exs.D23 to D31. The case having been adjourned for cross-examination, DW-2 though appeared on 31.05.2007 and also on 07.06.2007, plaintiff having sought adjournment was rejected and the cross- examination of DW-2 taken as nil. I.A.Nos.12 and 13 having been filed by the plaintiff to recall the orders passed on 07.06.2007, by reason of an order dated 27.07.2007, the applications were dismissed. I.A.14 filed to recall the said order was dismissed on 13.09.2007. The 5 said order was assailed in W.P. No.16321/2007. The writ petition was allowed by an Order dated 20.10.2008. DW-2 was cross-examined on 09.04.2009. DWs. 2 to 6 were examined subsequently. After completion of the trial and hearing the arguments the suit was dismissed by a Judgment and decree dated 14.08.2009.
4. Feeling aggrieved the plaintiff filed R.A. No.182/2009 in the Court of Senior Civil Judge, Kolar. A new Court having been established at Malur, the appeal was transferred and registered as R.A. No.216/2011, on the file of Senior Civil Judge and JMFC at Malur. R.A. No.216/2011 having been dismissed for non-prosecution, Misc. No.7/2013 filed was allowed and the appeal restored.
5. I.A.No.3 having been filed under Order XLI Rule 27 CPC by the appellant, by reason of an Order dated 20.10.2015 was allowed subject to payment of cost and as a consequence the impugned Judgment and Decree passed by the Trial Court was set aside and the case was remanded for the purpose of cross-examination of PWs 1 6 to 3 by defendant No.2 and also to grant opportunity to the parties to lead further evidence if any vide Judgment dated 29.10.2015. Assailing the said Judgment and decree, this appeal was filed by defendant No.2.
6. Sri T.N. Viswanatha, learned advocate contended that the Court below has committed error in remanding the case when the Trial Court has decided the suit on merit and not on any preliminary issue, that too by keeping in view the Judgment of remand passed on 10.01.2006 in R.A. No.124/2002. He submitted that merely because I.A.3 filed under Order 41 Rule 27 CPC for production of additional evidence was allowed, would not enable the Appellate Judge to set aside the Judgment and Decree passed by the Trial Court and remand the case. He further submitted that I.A.3 has been allowed without consideration of the same in accordance with law, particularly in the light of the ratio of law laid down in the decision of the Apex Court, in the case of UNION OF INDIA Vs. IBRAHIM UDDIN & ANOTHER - (2012) 8 SCC 148. He 7 contended that the impugned Judgment being perverse and illegal, interference is called for.
7. Sri B. Roopesha, learned advocate on the other hand submitted that I.A.No.3 having been allowed, the Court below is justified in remanding the case to the Trial Court, as evidence is required to be recorded. Learned counsel made submissions in support of the Judgment passed by the Court below and sought dismissal of this appeal.
8. In para 19 of the impugned Judgment, the Appellate Judge has reasoned that the Judgment of remand is being passed under Order 41 Rule 23 CPC and by giving direction to the Trial Court to decide the matter by providing opportunity to the parties to adduce evidence. I.A.No.3 was filed under Order 41 Rule 27 read with S.151 CPC, to permit production of additional evidence on the ground that the plaintiff was not given opportunity by the Trial Court to examine herself. The affidavit filed in support of the prayer in I.A.No.3 is very bald. The 8 application has not been considered by the Court below by keeping in view the ratio of law laid down in the case of IBRAHIM UDDIN (supra).
9. Question for consideration is whether the Court below has acted illegally in allowing the appeal and remanding the case for the purpose of granting opportunity to the plaintiff to adduce evidence and decide the suit?
10. The power of an Appellate Court to pass Judgment of remand and send the case back for trial is well settled. Appellate Court should be very loathe to remit the case particularly when the parties have fought the litigation for considerable period. If Trial Court has not disposed of the suit on a preliminary point but delivered Judgment on merit, it is the duty of Appellate Court to deal with appeal on all aspects. It is only in exceptional cases, where the Judgment of Trial Court is wholly unintelligible or incomprehensible, that Appellate Court can remand the case. Merely because there is some defect committed by 9 Trial Court, same cannot be a ground for Appellate Court not to do its duty of deciding the appeal on merit. Appellate Court will be shirking its responsibility if it simply remands the case to Trial Court without applying its mind as to whether the findings entered by Trial Judge are correct or not and / or whether the impugned judgment should be set aside or reversed. Appellate Court should bear in mind that the litigant who had incurred expenses and undergone the trouble of protracted trial would suffer by remanding the case. If trial has taken place and evidence on record is sufficient, the case should be decided on all points.
11. At the cost of repetition it is to be stated that, Order 41 Rule 23 CPC makes clear that no order of remand can be made except when the suit has been disposed of on a preliminary issue. There may, however, be a case in which the suit was not decided on preliminary point and yet the Court passes Judgment of remand in exercise of its inherent power. An order of remand should not be made 10 mechanically, as it would make the parties to again wait for further period and there might be an appeal again by an unsuccessful party.
12. In P. PURUSHOTHAM REDDY AND ANOTHER Vs. PRATAP STEELS LTD. (2002) 2 SCC 686, Apex Court has held as follows:
" 10. The next question to be examined is the legality and propriety of the order of remand made by the High court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex 11 debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati v.Sushila Mahendra nanavati (AIR 1965 SC 364 at p.399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.12
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A or Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule
25...."
(emphasis is supplied)
13. In SMT.UMA Vs. SRI N.V. RAJACHARI, ILR 2010 KAR 3078, by considering the scope of the provisions under Order XLI and Rules 23 to 25 CPC, it was held as follows:
" 19.... If the plaintiffs have not produced relevant evidence or the Trial Court has not correctly appreciated the evidence, it is for the Appellate Court to do its duties, keeping in view the provisions under Rules 25, 27, 29 and 31 of Order 41 CPC".
(emphasis is supplied)
14. The remand of the case leads to delay and causes prejudice to the parties to the lis, as an unwarranted order of remand gives the litigation an undeserved lease of the life and, therefore, must be 13 avoided. When the evidence is available, the Court should decide the appeal one way or the other. If necessary issue has not been raised, issues can be re-casted or additional issue raised and the appeal should be decided. Appellate Court being headed by the Senior and experienced Judicial Officer should keep in view the power under S.107 of CPC and the guidelines provided as per Order XLI, Rules 24 to 31 of CPC and decide the matter.
15. The Court below, instead of considering the record and deciding the controversy between the parties finally by keeping in view the provision under Order 41 Rule 24 CPC, has on account of the misdirection adopted and in ignorance of the record of the suit and also earlier judgment of remand, has passed the Judgment of remand i.e., for the second time. It is apparent that provisions of Order 41 Rules 24 to 27 CPC has not been kept in view. As a short-cut, Judgment of remand has been passed without reversing / setting aside the findings entered by 14 Trial Court on the issues / additional issues raised and answered.
16. I.A.No.3 filed for grant of permission to produce additional evidence having been objected, has not been considered by keeping in view the mandatory provision under Order XLI Rule 27 of CPC and the principles of law laid down in para Nos.36 to 48 in the case of UNION OF INDIA Vs. IBRAHIM UDDIN, (2012) 8 SCC 148. Even if additional evidence is permitted, then the Appellate Court should keep in view the provision made in Rule 28 of Order XLI CPC.
17. Without assigning the cogent reasons, Appellate Court cannot and should not exercise the power under Order XLI Rule 27 of CPC. The exercise of such power should be for valid reasons i.e., upon the fulfilment of the conditions precedent, which is not forthcoming in the present case. The impugned Judgment is capricious and perverse.
15
For the foregoing reasons, the appeal is allowed and the impugned Judgment and Decree set aside. R.A. No.216/2011 is restored for consideration afresh. Both parties shall appear in the Court of Senior Civil Judge, Malur, on 03.04.2017 and receive orders. Court below shall keep in view the observation made supra and decide the appeal and I.A.No.3 on or before 31.08.2017.
No costs.
Sd/-
JUDGE sac*