Karnataka High Court
Shivappa S/O. Basavanneppa ... vs Ningappa S/O. Basappa Jodalli on 3 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
MSA No.668/2013
BETWEEN:
SHIVAPPA S/O BASAVANNEPPA SHEELAVANTAR,
SINCE DECEASED BY HIS L.RS.
1. SHARADA W/O SHIVAPPA SHEELAVANTAR,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR MODERN HALL,
DHARWAD - 580 004.
2. JAYASHREE D/O SHIVAPPA SHEELAVANTAR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR MODERN HALL,
DHARWAD - 580 004.
3. NAGARA, S/O SHIVAPPA SHEELAVANATAR,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR MODERN HALL,
DHARWAD - 580 004.
4. LAXMI D/O SHIVAPPA SHEELAVANTAR,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR MODERN HALL,
DHARWAD - 580 004.
5. MANJUNATH S/O BASAVANNEPPA SHEELAVANTAR,
AGE: 52 YEARS, OCC: PRIVATE SERVICE,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
2
ULAVAPPA S/O SOMAPPA SHEELAVANATAR,
SINCE DECEASED BY HIS LRs.
6. SMT.PARVATAVVA W/O UALAVAPPA SHEELAVANTAR,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
7. SOMASHEKHAR S/O UALAVAPPA SHEELAVANTAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
8. SANGAMESH S/O UALAVAPPA SHEELAVANTAR,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
9. SMT.MAHADEVI W/O YALLAPPA GHANTI,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
10. SMT.SHOBHA D/O UALAVAPPA SHEELAVANTAR,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
11. NINGAPPA S/O SOMAPPA SHEELAVANTAR,
AGE: 62 YEARS, OCC: RETIRED,
R/O SHEELAVANTAR ONI, HOSAYALLAPUR,
DHARWAD - 580 001.
... APPELLANTS
(BY SRI.DINESH M.KULKARNI, ADV.)
AND:
NINGAPPA S/O BASAPPA JODALLI,
AGE: 27 YEARS, OCC: ADVOCATE,
R/O BAAD, TQ & DIST: DHARWAD - 580 010.
... RESPONDENT
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(BY SRI.S.A. NEELOPANT & SRI.A.L.NEELOPANT, ADVS FOR
C/R)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(U) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
28.08.2013 PASSED IN R.A.NO.126/2002 ON THE FILE OF THE II
ADDL. SENIOR CIVIL JUDGE AND AMACT, DHARWAD,
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 07.06.2002 PASSED IN O.S.NO.139/2001 ON
THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) & JMFC,
DHARWAD, DISMISSING THE SUIT FILED FOR PERMANENT
INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This miscellaneous second appeal is filed under Order 43 Rule 1(u) of CPC challenging the judgment and decree passed by the learned II Additional Senior Civil Judge and AMACT, Dharwad in R.A.No.126/2002 dated 28.08.2013.
2. The respondent herein was the plaintiff in original suit bearing No.139/2001 on the file of the Principal Civil Judge (Jr.Dn.), Dharwad. One Shivappa was the first defendant in the said case. Manjunath, Ulavappa and Ningappa were defendants 2 to 4 in the said case. The suit had been filed by the plaintiff for the relief of permanent injunction in respect of an agricultural land bearing Block No.97 (old R.S.No.83/A) measuring 2 acres and 2 4 guntas of Kelageri village, Dharwad Taluk. He had sought the relief of permanent injunction with a request to restrain the defendants therein from interfering with his peaceful possession and enjoyment of the said suit schedule property. The said suit had been contested by the defendants therein by filing written statement. Several pleas had been taken up and one important plea was in regard to the identification of the property. On the basis of the above pleadings, the learned Judge of the trial Court chose to frame 4 issues and one additional issue as found in page 6 of the judgment of the trial Court.
3. Two witnesses were examined on behalf of the plaintiff and 10 exhibits came to be marked. On behalf of the defendants, 3 witnesses were examined and 5 exhibits came to be marked. On hearing the arguments, the learned Civil Judge has held issues 1 to 3 in the negative and has held additional issue does not arise for consideration. Ultimately, the suit came to be dismissed after contest vide considered judgment dated 07.06.2002.
4. The said judgment and decree passed in O.S.No.139/2001 was appealed under Section 96 of the CPC before the Court of Senior Civil Judge, Dharwad and was assigned 5 to the Court of Second Additional Senior Civil Judge, Dharwad. The appeal was registered in R.A.No.126/2002. During the pendency of the appeal, an application was filed under Order 41 Rule 27 of CPC by the appellant/plaintiff on 20.03.2007. As an application filed under Order 41 Rule 27 of CPC has to be heard along with merits, the learned Senior Civil Judge heard the arguments on merits as well on the application and chose to dismiss the appeal.
5. As against the dismissal of the said appeal, a regular second appeal was filed before this Court in RSA No.113/2008 (Inj). The said appeal was allowed on 12.02.2013, directing the first appellate Court to consider the appeal on merits along with the interlocutory application filed under Order 41 Rule 27 of CPC which had not at all been considered. A direction has also been given to consider the appeal on merits as well as on interlocutory application filed under Order 41 Rule 27 of CPC keeping in mind the caution given by the Hon'ble Supreme Court in the case of Union of India Vs Ibrahim Uddin and Another reported (2012) 8 SCC 148.
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6. As such, the matter was taken afresh by the first appellate Court and again arguments were heard on merits and also on interlocutory application filed under Order 41 Rule 27 of CPC. The learned Judge has ultimately chose to allow the appeal and has directed the trial Court to hear the matter afresh and answer all issues by giving proper reasons and also receive additional documents produced along with the interlocutory application filed under Order 41 Rule 27 of CPC. This judgment is dated 28.08.2013. This is called in question in various grounds as set out in the appeal memo.
7. I have heard the learned counsel appearing for the parties at length. After going through the records and after hearing the arguments, following point arise for consideration.
"Whether the first appellate Court is justified in remanding the matter directing the trial Court to hear the matter afresh and to answer all issues and also to take additional evidence on the basis of the documents filed along with interlocutory application under Order 41 Rule 27 of CPC?"
8. Admittedly, the trial Court has answered all the issues. It is not as the suit has been dismissed only on the 7 question of maintainability. Of course, the learned trial Judge has considered all the issues together. He has considered the oral and documentary evidence and has also considered the relevant provision of the Karnataka Land Revenue Act, which speaks about the identification of the land by necessary demarcation by a competent surveyor. Of course, while dealing with the suit, the learned trial Judge has taken into consideration the provisions of Sections 61, 62 and Section 140 of the Karnataka Land Revenue Act. Section 9 of CPC has also been considered in regard to the disputes connected with the boundary disputes. The decision reported in 1996(2) KLJ 285 has been referred to and ultimately held that the disputes connected with the boundary of a holding will have to be decided under Section 140 of the Karnataka Land Revenue Act.
9. Against the said judgment and decree, an appeal was filed and during the pendency of the appeal, an application was filed under Order 41 Rule 27 of CPC along with certain documents with a request to take them as additional evidence. Without considering the said application, the appeal was dismissed on merits, as against which, a regular second appeal was filed before 8 this Court in RSA No.113/2008 and the said appeal came to be allowed remanding the matter to the first appellate Court for disposal of the matter in accordance with law along with interlocutory application filed under Order 41 Rule 27 of CPC. On receipt of the judgment in RSA 113/2008, the matter was once again taken up and the arguments were heard both on merits as well as on the interlocutory application filed under Order 41 Rule 27 of CPC. The application filed under Order 41 Rule 27 of CPC has been allowed. But the trial Court has been directed to re-hear the matter afresh and give findings on all the issues and also to take additional evidence on the basis of the documents produced along with the application under Order 41 Rule 27 of CPC.
10. Admittedly, the remand so made is not an open remand. The remand so made by the first appellate Court to the trial Court is for the limited purpose of recording additional evidence on the basis of the documents filed afresh under Order 41 Rule 27 of CPC and to give definite findings on all the issues separately. What should be the approach of the first appellate Court in such matters has been subsequently discussed by the Hon'ble High Court in the decision reported in ILR 2007 KAR 1127 9 between Shanthaveerappa Vs. K.N.Janardhanachari. While discussing the provisions under Order 41 Rule 27 of CPC in the light of Order 43 Rule 1(u) of CPC, it is specifically made it clear at paragraph 10 at page 1133 that, whenever additional evidence is to be recorded, the first appellate Court itself should make an endeavour to record the evidence by itself or get the evidence from the trial Court and receive a report to that effect from the trial Court and dispose of the appeal. Even if certain issues are framed, the first appellate Court will have to decide the same and if the additional evidence is required on newly added issues, the first appellate Court can direct the trial Court to record evidence and send a report to that effect.
11. In paragraph 12 of the said decision, it is held that, when the trial Courts are over burdened with 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 10 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.
12. It is further cautioned that the first appellate Courts should avoid this temptation of remand on one pretext or the other. They should demonstrate their resolve to shoulder 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. It is also made clear in the said decision and also in various decisions of the Hon'ble Apex Court that the power of the remand should be exercised sparingly that too in rarest of rare cases. What exactly the scope of the first appellate Court in recording the additional evidence under Order 41 Rule 27 of CPC has been clearly observed in the case of Union of India Vs Ibrahim Uddin and Another reported in (2012) 8 SCC
148. In the said decision, the Hon'ble Supreme Court has reiterated that the discretion of the appellate Court to allow 11 production of additional evidence will have to be exercised in exceptional circumstances.
13. Taking all these into consideration and the principles enunciated in Shanthaveerappa's case, I am of the considered opinion that the first appellate Court was not justified in remanding the matter, more especially setting aside a considered judgment without indicating as to how the trial Court judgment is wrong or perverse. It was incumbent upon the first appellate Court itself to have recasted the issues and to have recorded additional evidence, if required to pronounce an effective judgment. In the light of the same, the appeal is to be allowed. The order of remand passed in R.A.No.126/2002 dated 28.08.2013 will have to be set aside.
ORDER
14. Accordingly, the appeal is allowed. The order of remand passed in R.A.No.126/2002 dated 28.08.2013, is set aside. Consequently, the first appellate Court, i.e., the II Additional Senior Civil Judge and AMACT, Dharwad is directed to dispose of the appeal as expeditiously as possible and is at liberty to take suitable decision in regard to the recasting of additional issues 12 required and recording additional evidence, if it is absolutely required in terms of the Order 41 Rule 27 of CPC, more especially in the light of the principles enunciated in Ibrahim Uddin's case mentioned above.
15. The parties are directed to appear before the first appellate Court on 10.02.2014 without fail and the learned Judge shall make an endeavour to dispose of the matter before the closure of the civil Court for summer vacation 2014. The parties are directed to cooperate with the learned Judge of the first appellate Court in expeditious disposing of the matter.
In view of the facts and circumstances of the case, the parties to bear their own costs.
SD/-
JUDGE MBS/-