Karnataka High Court
Veershaiva Adhyayana Samsthe, Gadag vs Shri. Balaji Dattatreya Kushtagi on 31 January, 2013
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31st DAY OF JANUARY 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
MISCELLANEOUS SECOND APPEAL NO.543/2012
BETWEEN:
VEERSHAIVA ADHYAYANA SAMSTHE GADAG
A PUBLIC TRUST BY ITS SOLE TRUSTEE
SHRI JAGADGURU TONTAD SIDDLING
MAHASWAMIGALAVARU, AGE 63 YEARS,
OCC: DHARMOPADESH
R/O J.T. MATH, GADAG 582 101
REPRESENTED BY HIS P.A. HOLDER
MALLIKARJUN SHIVAPPA ANGADI
AGE 51 YAERS, OCC: SERVICE
R/O SHRI JAGADGURU TONTADARYA
SANSKRIT PATH SHALA GADAG
...APPELLANT
(BY SRI. M.G. NAGANURI, ADV.)
AND:
1. SHRI BALAJI DATTATREYA KUSHTAGI
AGE 53 YEARS, OCC: BUSINESS
R/O CR. VENKATESH HEBSUR
VEERASHWARNAGAR MULGUND ROAD
GADAG 582 101.
2. SHRI SURENDRA DATTATREYA KUSHTAGI
AGE 56 YEARS, OCC: BUSINESS
R/O ROTARY CIRCLE, GADAG 582 101.
3. SHRI LAXMAN DATTATREYA KUSHTAGI
AGE 72 YEARS, OCC:BUSINESS
R/O JAVALI BAZAR NEAR OLD DURGA
LODGE GADAG 592 101
4. SHRI NARAYANMURTHY DATATREYA
2
KUSHTAGI, AGE 65 YEARS, OCC: BUSINESS
R/O SANKET APARTMENTS,
NEAR NANDESHWAR MATH, GADAG 582 101
5. SHRI VASUDEV DATTATREYA KUSHTAGI
AGE 44 YEARS, OCC: BUSINESS
R/O NEHRU ROAD, NEAR ROTARY CLUB
GADAG 582 101.
6. SHRI LAXMINARAYAN GINNING AND
DECORATING FACTORY, A PARTNERSHIP
FIRM BY ITS PARTNER SHRI BALAJI
DATTATREYA KUSHTAGI
AGE 56 YEARS, OCC: BUSINESS
R/O NEAR ROTARY CIRCLE
GADAG 582 101.
...RESPONDENTS
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER XLIII RULE 1(U) READ WITH SECTION 104 OF CPC 1908
AGAISNT THE JUDGMENT AND DECREE DATED 07/01/2012
PASSED IN RA NO.24/2007 ON THE FILE OF THE CIVIL
JUDGE(SR.DN), GADAG, ALLOWING THE APPEAL FILED AGAISN
THTE JUDGMENT AND DECREE DATED 23/12/2006 PASSED IN
O.S.NO.53/2004 ON THE FILE OF THE PRL. CIVIL JUDGE(JR.DN)
GADAG, DECREEING THE SUIT FILED FOR POSSESSION OF THE
SUIT SCHEDULE PROPERTIES TOGETHER WITH MESNE
PROFITS.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the consent of the counsel on both sides, it is heard finally. 3
2. This miscellaneous second appeal assails the judgment of the first appellate Court dated 07/01/2012 passed in R.A.No.24/2007 by the Court of Civil Judge(Senior Division), Gadag.
3. The relevant facts of the case are that the appellant herein had filed O.S.No.53/2004 before Principal Civil Judge(Junior Division) at Gadag seeking the relief of possession of the suit schedule properties together with mesne profits. The defendants in the said suit contested the matter. On the basis of the rival pleadings, the trial court framed the following issues and additional issues:
"ISSUES:
1. Whether the plaintiff proves that he has terminated the tenancy of the defendants?
2. Whether the plaintiff is entitle for the relief of delivery of vacant possession of the suit properties?
3. Whether the plaintiff is entitle for the relief of mesne profits?4
4. What order or decree?
ADDITIONAL ISSUES:
1. Whether plaintiff proves that defendants tenancy is annual?
2. Whether defendant Nos.1 to 6 prove that their tenancy is permanent or perpetual?
3. Whether defendants prove that they perfected title to the suit properties by adverse possession?
4. Whether defendants prove that the original lessee or his L.R's are necessary parties to suit?"
4. In support of his case, the appellant examined PW-1 and produced forty documents which were marked as Exs.P-1 to P-40 while the respondents/defendants examined DW-1 and produced three documents which were marked as Exs.D-1 to D-3. On the basis of the said evidence, the Trial Court answered issues 1 to 3 and additional issue No.1 in the affirmative and issue No.4 and additional issue Nos.2 to 4 in the negative and decreed the suit of the plaintiff by directing defendant Nos.1 to 6 to 5 hand over possession of the suit 1(A) to (F) property to the plaintiff/appellant herein within 90 days from the date of said order. A direction for mesne profits was also issued to be computed from the date of termination of the tenancy till delivery of possession on separate enquiry to be held in that regard. Being aggrieved by the said judgment and decree, defendants 1 to 6 filed R.A.No.24/2007 before the lower appellate Court, which after hearing both the parties, framed the following points for its consideration:
"1. Whether the additional evidence sought to be produced is necessary for just disposal of the case?
2. Whether the proposed amendment of the written statement is necessary?
3. Whether the Lower Court judgment and decree is capricious, erroneous and illegal, thus calls for the interference of the Appellate Court?
4. What order or decree?"6
It answered points 1 to 3 in the affirmative and while doing so, two applications, one filed under Order XLI Rule 27 of the CPC and another filed under Order VI Rule 17 of the CPC by defendant Nos.1 to 6, who were the appellants before the first appellate Court, were allowed. They were permitted to produce additional evidence and also permitted to amend the written statement. Consequently, the matter was remanded to the trial Court for recording necessary evidence and for disposal of the suit. Being aggrieved by the said judgment and decree of the first appellate Court, the plaintiff is in appeal.
5. I have heard the learned counsel for the appellant and the learned counsel for respondents and perused the material on record.
6. It is contended on behalf of the appellant that the first appellate Court was not right in allowing the application filed by the respondents herein at a belated stage after conclusion of arguments and remanding the matter to the trial Court for reconsideration of the 7 evidence on record and also permitting to produce additional evidence. It is contended that even if for a moment it is assumed that the applications had to be allowed, then the first appellate Court could have looked into these documents and passed an order on merits since the trial Court had already on the face of the evidence on record, decreed the suit on consideration of the issues. Therefore, to that extent the remand order has to be set aside and the matter has to be heard by the first appellate Court on merits. Of course in this context, he has also contended that allowing of the applications under Order XLI Rule 27 and under Order VI Rule 17 of the CPC was unnecessary since there was ample evidence on record and it was not necessary to further give an opportunity to the defendants to produce the documents and that the amendment sought in the written statement was with regard to the suit being barred by limitation and its maintainability which aspect would also have been considered by the lower appellate Court. 8
7. Per contra, learned counsel for respondents while supporting the order of remand has stated that there is no merit in this appeal.
8. Having heard the learned counsel on both sides, the only point that arises for my consideration is as to whether the first appellate Court was just in remanding the matter to the trial Court and allowing the applications filed under Order 41 Rule 27 of the CPC and under Order 6 Rule 17 of the CPC.
9. From the material on record, it is noted that the suit is one for possession on the premise that the defendants are the tenants and that the plaintiff is the landlord of the suit schedule properties. On the basis of the evidence on record let in pursuant to the issues framed, the trial Court decreed the suit. Before the first appellate Court, an application was filed under Order VI Rule 17 was in order to contend that the suit itself was not maintainable i.e., the same is hit by the provision of the Limitation Act and that it was filed beyond the prescribed 9 period of limitation. No doubt such an issue would have to be considered as a preliminary issue, as that would determine as to whether it is necessary to consider the matter on merits. Therefore, a contention with regard to the suit being barred by limitation, could be raised even at the stage of appeal and hence no fault can be found with the first appellate Court for allowing such an application before the first appellate Court.
10. As far as the application filed under Order XLI Rule 27 of the CPC is concerned, it is contended by the counsel for the appellant that lease deeds-Kabuliyat/Exs.P- 9 and P-10 documents were sufficient for consideration of the relief of the plaintiff and it was only to delay the proceedings that the additional documents by way of certified copies of the lease deeds was sought to be produced which was not at all necessary. However, the first appellate Court has come to a conclusion that the said documents sought to be produced by the defendants were necessary for adjudication of the suit. Additional evidence 10 necessary for complete adjudication of the matter could be produced even at the appellate stage provided the conditions application for production of additional evidence as stated under Order XLI Rule 27 of the CPC which enable the parties to produce the additional evidence before the appellate Court are satisfied. The first appellate Court, in the instant case has allowed the said application, since the additional evidence was produced along with an application and the documents were not on the file of the trial Court. However, the first appellate Court could have itself decided the matter by recording the evidence adduced by the applicants under Order XLI Rules 27 and 29 of the CPC. The first appellate Court not having exercised the said powers would amount to failure of exercise of jurisdiction.
11. Even with regard to the aspect pertaining to the suit being barred by limitation and as to its maintainability is a matter which could have been considered by the first appellate Court. The remand of the 11 matter for these reasons is hence not in accordance with law.
12. In this context, reliance can be placed on the decision of this Court in the case of Shanthaveerappa v. K.N.Janardhanachari, ILR 2007 Kar. 1127 wherein this Court in the context of remanding the matter by the first appellate Court when an application is filed under Order 41 Rule 27 has held as under:
"11. An appeal is 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 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 12 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 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 13 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 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 14 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 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 the 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 15 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 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."
13. The said observations are squarely applicable to the present case. The first appellate Court while coming to the conclusion that the documents by way of additional evidence was necessary for complete 16 adjudication of the case, therefore, thought it fit to on the one hand remand the matter while at the same time has taken into consideration the additional evidence by giving a finding that the lease was a permanent lease. The said approach is wholly erroneous. When the additional evidence is not at all marked in evidence, the finding on the said document could not have been given by the first appellate Court.
14. In that view of the matter, the judgment and decree of the first appellate Court is set aside and the first appellate Court is directed to consider the case of the parties on merits and also to consider afresh the application filed under Order XLI Rule 27 of the CPC and thereafter to adjudicate the appeal in accordance with law. If it is of the view that it is not able to pronounce the judgment on merits and cannot do justice between the parties without the documents being taken on record, it has the discretion to allow the application. However, after allowing the said application, if the parties request that 17 they may be permitted to adduce oral evidence, then the first appellate Court itself shall record additional evidence and in addition taking into consideration the oral and the documentary evidence already on record, dispose of the appeal on merits in accordance with law without resorting to a remand. While considering the matter on merits, the first appellate Court shall also consider as to whether the suit is barred by limitation as well as on the question of maintainability of the suit under Section 92 of the Act.
In the result, while setting aside the judgment and decree of the first appellate Court, the appeal is allowed in the aforesaid terms.
Since the parties before this Court are represented by their respective counsel, they are directed to appear before the first appellate Court on 04/03/2013 without insisting on a Court notice. All contentions of both parties are kept open.
SD/-
JUDGE kmv