Karnataka High Court
Smt Sharada vs Smt Lalitha on 24 June, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH coum OF KARNATAKA AT BANGVALQIIE DATED THIS THE 24*" DAY OF JUNE, _ BEFORE THE HON'BLE MR. JUSTICE A.i\i. VEANEJGQPAALAA'Gash/EDAI' MISCELLANEOUS SE.CO._|__\iD APPIEAL No.'o2;I[2Voo:és BETWEEN: Smt. Sharada, gr ; W/o. Monappa Kottari, _ Major, R/o. Manasa Ap.a.rtmer..s,., ' Vidyaranapura-rn,-._ g Mysore -- 57.1 Oi-131_.V _ A " APPELLANT (By Adv. for Sri Kukkaje Ramakrishna BiIa't,. A»e:l_\I:.__) " AND: Shit, Laiitha ..... W/o. i"'afte_4Ha._rischandra, . L .-Aget_:l "?.3"\,reagrs, _R-,7__o.D'ogu,,_Co'f"o";)ound I (By Sri Sanath Kumar Shetty, Adv.) Guri Thotaf. House, i<udroi_'i, iviangaiore -~ 575 001. ~ RESPONDENT
This MSA is fiied under Order 43 Rule 1(u) of CPC against the Judgment and Decree dated 2.11.2007 passed
----in RA.No.83/2007 on the file of the I Addi. Civii Judge (SR.DN) 8: CW, Mangaiore, ailowing the appeai and setting aside the judgment and decree dated 21.04.2007 passed in O.S.No.664/2003 on the fiie of the I Addi. Civil Judge (JR.DN), Mangalore, [).K., and remanding the .«_m.att_ei*,,'to the Trial Court under 0.41, R 23A of CPC. T" 5 This Appeal coming on for hearing,',_"th.iVs Court deiivered the following:
J benefit'
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Defendant is the 'baoj'pvellant;' 'RVelspo:n'de»n't'j filed' 0.5.664/2003 against" the ',,a--pVg.e:E--|.ant,.inlthe-.Court of Civil iludge (3r.Dn.) at to declare that, the order Additional Civil Judge (.}r';f§-1., ::5i_r1' 257/ 1997 dated has.'f-_i§e::oIn:e-~--._inoperative, unexecutable and unenforce_ableV'agaiVnst::"'ij.er, The suit was resisted by filing written s't'a.ternent.
if -- Court framed 12 issues. For the plaintiff, 'iPyl!s.1.tot':-,;3'l::deposed. Exs.P1 to P11 were marked. The defendant deposed as DW.1 and Exs.iZ)i to D40 were it 'vl7'l:éTk€d. Taking into consideration the rival contentions, the Trial Court answered all the issues. Issues 1, 4, 5 and 7 were answered in the affirmative, issues 2, 3, 6, 8, 9 and 10 were answered in the negative and the suit was L 2-"
dismissed with costs. Aggrieved, the plaintiff fi,!ve,d"-.a_p..peal in the Court of Civil Judge (Sr.Dn.), at Mangal-or'e'A.':5.'jf _
3. The first appellate Cou upon hear-i2:g:_"t'h_e.VVle:arn'ed bi' counsel for the parties and, afterperusal of,.".thAev r*ecords"of, the suit, raised the fo|lowing""'spo'iints for"d_e'termiVnatiVon:
i) Whether':~..V/they"m9fVri.@,,I._ ji"C,ourt'VV"lhas framed appropriate .a_"issiue's»' _vvist.h_».,."i'eference to the p4|eadings3"""'of": 'both parties before _, 3-_cor,nfn,encenf:e'nt of ~ev'id'en'ce?
,,.,i'i')» app*eV!la;nt-- plaintiff proves that in I registered sale deed dated _ 4' _ registered settlement deed Vdateci 2'7.V9'.".V2003 he has acquired the superior _ ri"g'i3t..__o.ver the suit scheduie property and the
--.,i"'~-d_'ecrees passed in H.R.C. petition and Rent 'V.A',i'VRevision Petition are legally inoperative, un--- _ V "executable and unenforceable against him? C .. t*i«:_ii)v Whether the impugned judgment and decree passed by the Trial Judge is required to be interfered with?
iv) What order or decree?
4. By answering point No.1 in the negative, it heid that the Trial Court is required to conside=\r¥t/he question of law of merger of larger interest with smaller interest in regard to the merger of tenancy and ownership rivgi'it:"'of the plaintiff by virtue of acquiring mooli right _su.i.t schedule property as per the registered..d,o'c*t:Vrr.:e:nt.s. if arriving at the said finding, it coincluded. '4 to remit the suit to the Triayl emits fra_r."ie..approgpriiateg issues, considering the plea setlupby tl'ie',_piia':intliiff in regard to the survey sett|enient,.'_VAvai.Aidi:t.yi.:o'*f.,decree, merger of sub--tenancy with own,ers'h~i,p r'eferiei.if,lce to title deeds of the parties"a'nd__d3istposVe~«of the suit in accordance with law. The apaeaiy wa»s«Vaji'l'owe«d:;"'"The impugned judgment/decree of ;the. Trial-. _Court.'"was set aside and the matter was ,,re'rnain:dedi~.,_to thewrrial Court under 0.41 R.23--A CPC. defendant has filed this appeai.
-Fu.I«:rilVijaya Krishna Bhat, learned counsel appearing .. for thesappellant would contend that, the Court below has A'*;:'faEl'ed to appreciate the fact that, the Trial Court has framed issues elaborately and fresh issue in fact did not arise at all as contemplated under 0.14 32.1 CPC and it has committed an error and iliegaiity in remanding to the Trial Court for disposal. Learned counse'i"'c.o'n.teVncle'd_ that, the first appellate Court has com.m-itteidblrieacii provisions under R524 and 25 judgmentis unsustainable.' A it A A A it
6. Sri Sanath counsei appearing for other hand, contended that. thevAappeliate_Co'u'rtVAh~a.s"'made elaborate referer1c'e.:tt: A p--roceediru'g~s"'§that have taken place betwe-enthe to the relevant provisions of the Karnataka VFV{e_ntr.Act.:."~~'iI989 ("the Act' for short) and the dec«i.siEogns__interpre.ti.ng the provisions of the Act as well as ' the. repealing of the Karnataka Rent Control Act "and has'.v-airrived at the right conciusion. According to the iearned: counsei, in the facts and circumstances of the it x_ca"se, the appellate Court is justified in passing the impugned judgment since there was a material omission A on the part of the Triai Court whiie passing the judgment and decree of dismissal of the suit. Learned counsel made /7 submissions in support of the findings and conclusion of the learned appellate Judge in the impugned judgVme_nt...V
7. In view of the rival contentions and_:"'t'b--e'_'We-re_cord~,,_ which I have perused, the point fo>rVconside*i"ati:o.n "
"Whether the appellate'-._ Court remanding the suit:t.o the'p_Trial Court': to ':';framé~t' appropriate issues and"--for~ldecisicn_V?«r i
8. After the amendrneijt__A_ct 10*4-Vof_?z976, the remand Court can be only in terms of Rs.23a.nd The powers of the appellate Court are 'asw..Vprovide'd under S.107 CPC. Since the suit has _l)"é€',ni,.,'jiSlFTil§S€d answering all the issues which were .Aof.'--:O.41 has no application. Since the suit has been r.__dis._o§osed of otherwise than on a preliminary point, .R.2?;+l\;of 0.41 could have been invoked, in case the "-Ag_V'dec:ree is reversed in appeal and re--trial is considered
--fnecessary, in which case, the appellate Court shall have the powers as it has under R.23. Before a remand is ordered by having recourse to the sic} provision, the K,'/'7 appellate Court shall have to examine the appe,avl,V_jke_epVing in view the provisions under R524 and 25. "p'i'o.vi§-d..es.,y that, where the evidence upon _th.e,__recor'd"'is:'_suffici'entV,.veto".:"'--.. enable the appellate Court to "pronotince._'j'ud'gme'iit,'*the appellate Court may, rese-ttliog 'Vtlhe;~-.i.s;si.ies, necessary, finally determine_.t.h:e,_sui.t, notv.iithstaEnding that the judgment of the Court froriri jf2v4h'o,f$e"d-e_cree the appeal is preferred has_i'proceed'eci. ground other than that-o*n,4_ .appel!fateV:CoVurt proceeds. R.25 provides Court from whose decree the appeal is"p,refe.rre}dAi.ija:-:.:':,o:hitted to frame or try any issue, orgto dyetermine' anydqulestion of fact, which appears to the ._§p;$ei':l':;ite'l'tcpurt eesential to the right decision of the suit : 'u'poAnv-:v'tlJ.e_ Cm-erits, the appellate Court may, if necessary, f'r4amev'i'5su"es, and send the same for triaé to the Trial Court .. w_ith"a;direction to take additional evidence required and be f"s--ubmit the findings. When such an order is passed, it is not open remand, which can take place by virtue of the provisions under Rs.23 and 23--~A. The order if passed under 0.25 can only be termed as a limited remand for trial on a particular issue or point and for evidence to the appellate Court. Such a adopted by an appellate Court,"i}vh'i'ch hasnoi_facili'tyH'to ii' record the evidence by itself A1'a__nd_V_A.on »aVc_r:Aouri't it handicap which it has, it requi-res the._T'ria_"l_= or any competent Court to.:f'ec_ord the"i'ss'ue or point. When recourse is had :by_...ari.AA_a.p'p_~ellate Court, it is imperative §th'a._tCji.t shall 'fram.e'5tj_hev_.issue and record the evidence€'vvh_i.ch"'sh3ould~{jeo'nfi_nAe the issue or the point as the iicasetlArrivja~;r..J3vit'«i,s"*r.'t_hereafter, the appeal should be disposed 'of. V C C C
9. Ke'ep_ing in" view the provisions noticed supra, «.vvlhen"'.lti1e'innpugned order is examined, it certainly falls A"._short"V4of...,lv_ti€§v~':requirements, both under Rs.24 and 25 of 01-41 The impugned order has been passed without is hesto'wing any attention to the provisions contained under and 25 of 0.41 and the powers of the appellate Court under sub--section (1) of 8.107 CPC. It is not the case of the appellate Court that, the evidence on record is K /I,'/"
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appellate Court for disposal, keeping in the observations made supra in accordance with;'_"l'aw.;_~v--...jAli:_.Vtiie contentions of both the parties are-~v--l2e"pt:"'o:peAn consideration by the Court below, The parties are toa.a'ppe'aru'gVoef'ore the appellate Court onV1?:7.2Q'1'0-ha'nci""receive'"orders. Since the parties are litigat%i:ig a decade, the appellate Court; is dii:ecteclV.::to-4:t§.li:_e_up appeal on priority basis"aVndTA'ci;ilhsp:o¢se. same"; expeditiously and at any event, ' in 4txl'I'é.'_ vf'El('itS.'V'3i'!vd circumstances of the case. The a:"'rey_.direct'ecl to bear their respective costs. A VRe'turnVVthe LCR to the first appellate Court. Sfife IUDGE I so/-= "Si/" moss