Karnataka High Court
N M Venkataramana vs Koosappa Gowda on 23 February, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
MISCELLANEOUS SECOND APPEAL NO.61 OF 2016
BETWEEN:
N.M.Venkataramana, 61 years,
S/o Muthappa Gowda
R/at: Kolthige Village,
Puttur Taluk,
D.K.District - 5742 01. ..... Appellant
(By Sri. G. Balakrishna Shastry, Advocate)
AND
1. Koosappa Gowda, 79 years,
S/o Kunhanna Gowda.
2. K. Devadas, 46 years,
S/o Koosappa Gowda.
Both are agriculturists,
R/at: Kullampady in
Aivernad Village & Post,
Sullia D.K - 574239
... Respondents
(By Sri. K. Shrihari, Advocate for R1 and R2)
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This Appeal is filed under Order 43, Rule 1(u) of
CPC, against the judgment and decree dated
09.02.2016 passed in R.A. No.51/2010 on the file of the
V Addl. District and Sessions Judge, D.K. Mangalore,
sitting at Puttur, D.K. allowing the appeal and setting
aside the judgment and decree dated 18.01.2010 passed
in O.S. No.16/1997 on the file of the Addl. Senior Civil
Judge and JMFC., Puttur, D.K. remanding back the
matter to the lower court to dispose of the suit afresh in
accordance with law.
This Appeal coming on for admission, the Court
delivered the following:
JUDGMENT
Though this Miscellaneous Second Appeal (MSA) is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This MSA is filed by the plaintiff in O.S.No.16/1997 assailing judgment and order of remand passed by the 5th Additional District and Sessions Judge, Dakshina kannada, Mangalore, sitting at Puttur, in R.A No.51/2010 dated 09.02.2016. By that judgment, the matter has been remanded to the trial Court for fresh adjudication, after permitting the -3- defendants to amend their written statement and directing the parties to be given an opportunity to let in additional evidence and to dispose of the suit in accordance with law.
3. It is the case of the plaintiff that the suit for specific performance of contract was filed by him against the defendants seeking specific performance of the agreement to sell the suit properties dated 14/11/1996 to the plaintiff for a total consideration of Rs.8,00,000/-. In the alternative, plaintiff prayed for refund of the earnest money of Rs.6,78,000/- paid to the defendants by the plaintiff with interest at the rate of 15% per annum from 14.11.1996 till the date of realization.
According to the plaintiff, the defendants are the owners in actual possession of the suit properties situated in Aivernadu village in Sullia Taluk, described as schedule 'A' to the plaint. There was mutual -4- negotiation for alienation of the said properties between the parties and the defendants agreed to sell the suit properties to the plaintiff for a total consideration of Rs.8,00,000/-. The defendants agreed to execute a registered sale deed on 15.01.1997. The plaintiff has contended that a sum of Rs.6,78,000/- was paid on the date of the agreement i.e., 14.11.1996 as advance sale consideration to the defendants. According to the plaintiff he was ever ready and willing to perform his part of the agreement by paying the balance consideration of Rs.1,22,000/- with expenses of registration of the sale deed. But the defendants, with an ulterior motive, intended to alienate suit schedule 'A' properties to some others. In the circumstance, plaintiff had filed O.S.No.155/1996 on the file of the Munsiff Court at Puttur/Sullia against the defendants for a decree of permanent injunction, restraining defendants from alienating the 'A' Schedule properties. In the said suit, an order of temporary injunction was granted on -5- 23.11.1996. Plaintiff issued a registered notice dated 01.01.1997, to the defendants calling upon them to execute the registered sale deed on 15.01.1997 by receiving the balance of sale consideration amount. Though the said notice was received by the defendants on 01.01.1997 they neither replied to it nor acted upon the same. Plaintiff has awaited in the Sub-Registrar Office for the defendants on 15.01.1997, but the defendants did not turn up on the said date. Therefore, he filed suit seeking specific performance of the agreement dated 14.11.1996 and also for the alternative relief.
4. In response to the suit summons, defendants entered their appearance through counsel and filed their written statement contesting the suit of the plaintiff. It is admitted that they are the owners of 'A' schedule properties but they denied that they entered into the agreement with the plaintiff on -6- 04.11.1996. They also denied that any consideration was received by them under the said agreement. It is contended that the plaintiff is a distant relative of defendant No.1. Plaintiff approached defendant No.2 to marry his daughter. Plaintiff also offered to pay handsome dowry, but defendant No.2 refused to marry her. Therefore, plaintiff filed a false suit with the forged documents in order to make an unlawful gain and to take revenge. According to defendants the suit is vexatious and not tenable in law. That plaintiff wanted to extend financial help with a ulterior motive to marry defendant No.2 to his daughter as if to enable the defendant No.2 to improve his business in spare parts of two-wheelers at Bellare in Sullia Taluk. Plaintiff had advanced a sum of Rs.25,000/- without any documents except receiving a signed blank cheque drawn on Syndicate Bank, Panja branch. Plaintiff has falsely contended that defendant No.2 has borrowed a sum of Rs.30,000/- from him and sought attachment of the -7- present suit properties before judgment, by filing a suit in O.S.NO.140/1996. Further, plaintiff has filed O.S.No.153/1996 seeking an injunction with respect to the suit schedule properties. The said suit which was contested by the defendants was ultimately dismissed. Therefore, the present suit has been filed which is barred by the principles of res-judicata.
5. Defendants have further contended that there was no necessity for them to borrow any money from the plaintiff or for them to sell the suit schedule properties to the plaintiff. The relationship between the parties is strained on account of the suit in O.S.No.140/1996 being filed by the plaintiff who obtained an order of attachment of the suit properties. Though defendants sought dismissal of the suit, by way of additional written statement, it is also denied that that plaintiff is entitled to the alternative relief with an interest at the rate of 15% per annum. In the -8- circumstances, the defendants sought for dismissal of the suit. On the basis of the aforesaid original pleadings, the trial Court framed the following issues and additional issues for its consideration:
i) Whether the plaintiff has proved that himself and the defendants have entered into an agreement on 14-11-1996 as averred?
ii) Whether the plaintiff has proved that he was always ready and willing to perform his part of the obligation under the suit agreement?
iii) Whether the plaintiff has proved that the defendants have committed breach of the agreement?
iv) Whether the suit is barred by res-
judicate?
v) Whether the valuation of the suit for the purpose of the Court fee and jurisdiction is proper and correct?
vi) What order/decree?
-9-Additional Issues:
i) Whether plaintiffs' alternative claim for refund of advance amount is barred by limitation?
ii) In the event of decree in the suit for alternative relief, whether the plaintiff is entitled to interest thereon at 12% p.a. from 14-11-1996?
iii) Whether the defendants prove that at the time of execution of alleged agreement dated:14.11.1996 the relationship between them and plaintiff was strained on account of filing a suit in O.S.No.149/1996 by plaintiff and by virtue of order of attachment of plaint 'A' schedule properties ?
iv) Whether the plaintiff proves that at the time of alleged agreement dated:14.11.1996 he had requested defendants to adjust the loan, however the defendants insisted that the same will be cleared at the time of Registration of sale deed ?
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6. In respect of his case, the plaintiff examined himself as PW-1 and two other witnesses were examined as PW 2 and 3 and plaintiff produced 10 documents which were marked as Ex.P1 to P10, while defendant No.2 examined himself as DW1 and got marked the documents as Ex.D1 to D10. On the basis of the said evidence, the trial Court answered issue Nos. 1 to 3 and 5 in the affirmative and issue No.4 and additional issue Nos. 1 and 3 in the negative. Additional issue No.2 was held to be as not arising for consideration. The trial Court by judgment and decree dated 18.01.2010, decreed the suit in part by directing the defendant to execute a registered sale deed and by delivering the possession of the suit properties to the plaintiff after receiving the balance consideration amount of Rs.1,22,000/- from the plaintiff within three months from that date.
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7. Being aggrieved by the judgment and decree of the trial Court, the defendants preferred R.A.No.51/2010 before the first appellate Court which raised the following points for its consideration:
1. Whether the appellants/defendants have made out just and reasonable grounds to allow I.A.No.IV and VI to VIII filed U/O 41 rule 27 r/w Sec.151 of CPC to produce additional evidence and to amend the written statement, as prayed in said applications?
2. Whether the respondent/plaintiff has made out just and reasonable grounds to allow IA.No.IX filed U/O.41 Rule 27 r/w Sec/151 of CPC to produce additional evidence i.e., documentary evidence as prayed in said application?
3. Whether the appellants prove that the trial Court's finding on issues is wrong since alternate relies sought is militated against claim?
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4. Whether appellants made out that interference of this Court in the judgment and decree of the lower Court is required to reverse or set aside the same?
5. What order?
It answered point Nos. 1 to 4 in the affirmative and allowed the appeal by setting aside the judgment and decree passed by the trial Court. The matter was remanded to the trial Court, so as to permit the defendants to amend their written statement as prayed for in IA.No.VI filed in the appeal and to lead additional evidence and to dispose of the suit afresh in accordance with law. Being aggrieved by the judgment and order of remand the plaintiff has preferred this Miscellaneous Second Appeal.
8. I have heard the learned counsel for the appellant and learned counsel for the respondent Nos.1 and 2 and perused the material on record.
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9. Appellant's counsel contended that the Courts below could not have remanded the matter merely because the respondents in the appeal who are the defendants in the suit filed certain applications in the appeal. He contended that the respondents had filed as many as five applications. One, was for referring the hand writing of respondent No.1 which is found in Ex.P1, to a handwriting expert. That application was filed under Order XXVI Rule 10(A) of Code of Civil Procedure, 1908. He contended that when the respondent did not seek such a reference before the trial Court, they could not have sought for a reference to the hand writing expert before the first appellate Court, particularly, after the finding being given in favour of the appellant here by the trial Court. He further submitted that the amendment of the written statement was unwarranted that the defendants could not have sought for amendment of the written statement, having
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regard to Section 35 of Karnataka Stamp Act, 1957, the amendment made to the Hindu Succession Act,1956 and the recent judgment of the Hon'ble Supreme Court in the case of Prakash and others v/s Phulavati and others, reported in (2016) 2 SCC 36 and further the provision of Order II, Rule 2 of CPC was not applicable to the case
10. Learned counsel further submitted that the other applications was filed under Order XLI Rule 27 of Code of Civil Procedure. The first appellate Court ought to have considered as to whether additional evidence was permissible having regard to the parameters under Order XLI Rule 27 of Code of Civil Procedure and in light of the judgment and decree passed by the trial Court as well as the evidence on record. In the absence of such an exercise being carried out by the first appellate Court, the matter could not have been simply remanded to the trial Court for a fresh adjudication.
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11. Learned counsel in this regard brought to my notice the judgment of this Court in the case of Shantaveerappa v/s K.N Janardhanachari reported in ILR 2007 KAR 1127 and in the case of Smt.Uma and another v/s Sri.N.V.Rajachari, since dead by legal representatives reported in ILR 2010 KAR 3078, with regard to the manner in which the first appellate Court must exercise its jurisdiction when an application is filed for bringing on record additional evidence and generally as to how an appeal has to be dealt with instead of simply remanding the same to the trial Court for fresh adjudication.
12. Per Contra, learned counsel for the respondents supported the judgment and order of remand. He contended that the respondent No.1 here in did not have exclusive right, title or interest in the suit schedule property. He could not have solely executed Ex.P1 so as to agree to convey the suit schedule
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property to the appellant/plaintiff. That Ex.P1 did not bear necessary stamp duty, the said document could not have been marked in evidence and the trial Court had lost sight to that aspect of the matter. Therefore, the respondents herein rightly sought amendment of the written statement that the first appellate Court was justified and allowing the said application as well as remanding the matter to the trial Court for fresh adjudication and that there is no merit in this appeal.
13. It is contended that in the appeal, the defendants filed certain applications: first, was with regard to reference of Ex.P1 to a hand writing expert for the purpose of ascertaining as to whether the signature on the said documents was that of the defendant's or not. When the defendants had asserted that the signatures on Ex.P1 was not of the defendant's, burden lay on the plaintiff to prove the said documents. No step was taken by the plaintiff to prove Ex.P1 by getting the
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document referred to the hand writing expert. In the circumstances, the defendants in the first appeal sought for such a reference. In my view, the first appellate Court ought to have allowed that application and referred Ex.P1 to a hand writing expert. If indeed the said Court had doubt about the signature of the defendants on Ex.P1 and on securing the expert's Report, considered the same at the time of disposal of the suit on merits. As far as the amendment of the written statement is concerned, the first appellate Court ought to have considered the contents of the amendment and as to whether that amendment could be allowed or not, having regard to the contents instead of just permitting the amendment to the written statement being allowed by remanding the matter to the trial court. Similarly, the first appellate Court ought to have considered as to whether additional evidence was permissible having regard to the parameters of Order XLI Rule 27 CPC at the time of hearing the appeal.
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Instead of considering these aspects of the matter, it appears that the first appellate Court has simply allowed the application as it had intended to remand the matter in the first place without considering as to whether the judgment and decree of the trial court was correct or not. Since the matter was to be remanded, the judgment and decree of the trial Court has been simply set aside without assigning reasons to do so.
14. In this regard, the two judgment of this Court referred to above could be relied upon at this stage.
(a) In Shantaveerappa v/s K.N Janardhanachari reported in IlR 2007 KAR 1127 it has been observed as under:
"11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way
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of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of Trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the Trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the
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disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavour should be to dispose of the case finally by the first Appellate Court itself. When the Trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide
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fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice.
12. Unfortunately, the first Appellate Courts are not appreciating these statutory provisions in proper perspective. Though the first Appellate Courts are vested with this unlimited power, greater the power, greater should be the care and caution which should be exercised by the Appellate Court in exercise
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of such power. Especially, the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first Appellate Court to decide the case on merits finally. When the Trial Courts are over burdened with the cases, the first Appellate Courts which are better placed and presided over by Judges with greater experience, should take upon themselves the responsibility of recording evidence and decide the case on merits, thus shortening the length of litigation. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. Therefore, it is impressed upon the first Appellate Courts, that they would be doing a great service in the course of fight against delay in disposal of cases, by accepting the challenge, exercise their appellate power judiciously, receive and record additional evidence and decide the cases finally. They should avoid this temptation of remand on some pretext or other. They should demonstrate their resolve to shoulder
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responsibility and commitment in rendering justice to the litigant who is knocking at the door of temple of justice patiently in anticipation of a just decision. Judges should decide the lis. This would be one of the ways of not only reducing the delay in disposal of Cases, but also avoiding docket explosion, within the existing legal frame work."
(b) Further, in the case of Smt.Uma and another v/s Sri.N.V.Rajachari, since dead by legal representatives reported in ILR 2010 KAR 3078, the observations are as under:
"12. It is well settled position of law that, in a suit as well as in first appeal, all disputed facts are open for decision. A point of fact is not to be decided in a second appeal under Section 100 CPC, where only a substantial question of law is to be looked into and if the impugned judgments have given rise to a substantial question of law, the second appeal can be maintained.
13. Order 41 Rule 23 CPC, when perused, it is clear that the same would be
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applicable when a decree has been passed by the Trial Court on a preliminary issue. When an appeal is preferred and when the Appellate Court disagrees with the findings of the Trial Court on such preliminary issue and when the decree under challenge is to be reversed in appeal, the Appellate Court, if considers it necessary, remand the case, since the Trial Court may not have recorded the evidence on merits of the suit and has also not recorded findings on all the issues, which arise for consideration in the suit.
14. Before invoking the power of remand permissible under Rule 23 of Order 41, the conditions precedent laid down therein, must be satisfied. Time and again, the Apex Court and this Court have held that, the first Appellate Court should be loathe to exercise its power conferred under Rule 23 of Order 41 of CPC and an order of remand should not be passed routinely. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided.
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15. Order 41 Rule 23-A CPC is not attracted to the instant case, since the Court below has not arrived at a finding that a re- trial is necessary.
16. Order 41 Rule 25 CPC, stipulates that, if it appears to the Appellate Court that any fact essential for decision in the suit has to be determined, it could frame an issue on the point and try the same by itself or refer the same for trial to the Court from whose decree the appeal is preferred and in such a case, shall direct such Court to take additional evidence required. The first Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. "
15. The aforesaid judgments would clearly reveal as to how a first appellate Court ought to consider the first appeal even in the face of applications filed in the said appeal. But I find in the instant case, the first appellate Court has remanded the matter to the trial
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Court for fresh consideration without assigning proper reasons for allowing the said applications.
16. In the circumstances, the appeal is allowed, the judgment and order of remand passed by the First Appellate Court in R.A No.51/2010 is set aside. The matter is remanded to the concerned first appellate Court for fresh consideration in accordance with law. It is clarified that the orders passed on the applications are also set aside. The first appellate Court is directed to reconsider each of the applications filed by the respondents and particularly the application filed under Order XXVI Rule 10A of Code of Civil Procedure, is in accordance with law and well the applications filed by the appellant herein seeking to produce additional evidence/documents, in the light of the evidence on record and the judgment of the Trial Court and thereafter to dispose of the appeal in accordance with law.
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17. As the parties are represented by their respective counsel, they are directed to appear before the concerned first appellate Court on 27.03.2017, without expecting any further notice from that Court. On such appearance of the respective parties below the first appellate Court, shall dispose of the appeal in terms of the observations made above and in accordance with law.
Parties to bear their respective costs.
SD/-
JUDGE AG/DN