Karnataka High Court
Sri V Narayana Reddy vs Smt Narayanamma on 22 February, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
MSA.NO.77/2015
BETWEEN:
1.SRI V NARAYANA REDDY
S/O.LATE N.VENKATARAYAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT DEVARAMALLUR VILLAGE
AND POST,KASABA HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT.
2.SRI V RAMACHANDRA REDDY
@ RAMACHANDRA,
S/O.LATE N.VENKATARAYAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT DEVARAMALLUR VILLAGE
AND POST, KASABA HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT.
3.SMT V YASHODAMMA
W/O.LATE JAYACHANDRA,
AGED ABOUT 60 YEARS,
RESIDING AT NO.4-A,
SUMUKHA, INDIAN EXPRESS LAYOUT,
VIRUPAKSHAPURA,
KODIGEHALLI,
2
BANGALORE-560097.
.. APPELLANTS
(BY SHRI. B V GANGI REDDY, ADVOCATE,
FOR SHRI. SUBBA RAO & COMPANY)
AND
1.SMT NARAYANAMMA
W/O.LATE DODDA VENKATARKAYAPPA,
AGED ABOUT 73 YEARS,
2.SMT PADMAVATHAMMA
W/O.JAYARAM REDDY,
AGED ABOUT 73 YEARS,
3.SMT ANITHA
W/O.NAGARAJ,
AGED ABOUT 73 YEARS,
4.SRI MUNIREDDY
S/O.LATE BYANNA,
AGED ABOUT 73 YEARS,
5.SRI KRISHNA REDDY
S/O.LATE BYANNA,
AGED ABOUT 73 YEARS,
6.GOVINDA REDDY
S/O.LATE BYANNA,
AGED ABOUT 73 YEARS,
7.SMT ERAGAMMA
W/O.NARAYANA SWAMY,
AGED ABOUT 73 YEARS,
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ALL ARE RESIDING AT
DEVARAMALLUR VILLAGE AND
POST, KASABA HOBLI,
SIDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT.
... RESPONDENTS
(BY SHRI. G BALAKRISHNA SHASTRY,
ADVOCATE FOR R1 TO R3,
SHRI. ARUN K.V. FOR SUNIL & NITHIN
ASSOCIATES FOR R4 to R7)
THIS MSA IS FILED U/O 43, RULE 1(u) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:
21.07.2015 PASSED IN RA NO.57/2012 ON THE FILE
OF THE II ADDL. DISTRICT AND SESSIONS JUDGE,
CHICKBALLAPUR,SITTING AT CHINTAMANI,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED: 02.03.2012 PASSED
IN OS.NO.64/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE, AND JMFC.,CHINTAMANI, DISMISSING
THE SUIT FOR PARTITION AND SEPARATE
POSSESSION ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING;
JUDGMENT
Though the appeal is listed for admission, with the consent of the learned counsel on both sides, it is heard finally.
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2. This Miscellaneous Second Appeal assails the judgment and order of remand dated 21.7.2015 passed by the II Addl. District and Sessions Judge, Chickballapur, with a direction to register the suit in its original number and permit the plaintiffs to amend the plaint, implead the respondent- Devaraj as defendant and permit the defendants to file additional written statement after plaint is amended and to permit them to adduce additional evidence.
3. Being aggrieved by the order of remand, defendant Nos.2, 3 and 4 have preferred this appeal.
4. For the sake of convenience, parties herein shall be referred to, in terms of their status before the trial court.
5. The respondent Nos.1 to 3 herein are plaintiffs while respondent Nos. 4 to 7 herein are defendant Nos.5 to 8 in the suit.
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6. Plaintiffs filed the suit seeking the relief of partition and separate possession claiming 1/3 share in the suit schedule properties. According to the plaintiffs, one Narayanappa had two wives namely, Bayamma the first wife and Muniyamma, the second wife. Bayamma had two sons namely, Dodda Venkatarayappa and N. Venkatarayappa. Dodda Venkatarayappa had two daughters namely, Padmavathamma and Anitha (plaintiff Nos. 2 and 3). N. Venkatarayappa's wife Kempamma, is first defendant and they have three children namely, Narayanareddy, Yarhadhamma, Ramachandrareddy. The second wife of Narayanappa, Muniyamma had two children namely, Bayanna and Lakshmamma. Both are dead. Bayanna's wife is also dead. Their children Munireddy, Krishna reddy and Govindareddy who are defendant Nos. 5 to 8 respectively. Husband of the first plaintiff died in the year 2001. According to 6 the plaintiffs, defendants colluded with each other and have not looked after the welfare of the plaintiffs and hence the plaintiffs filed the said suit seeking partition and separate possession of their share in the suit schedule properties.
7. In response to the suit summons and court notices, defendant Nos.1 to 3 and defendant Nos.5 to 8 appeared before the trial Court. Steps have not been taken against the fourth defendant. Hence, the suit against the fourth defendant was dismissed for non-prosecution. Defendant Nos.1 to 3 filed their joint written statement while defendant Nos.5 to 8 did not file their written statement. Defendant Nos.1 to 3 in their written statement have contended that one Ramanna and Pillappa, the propositus of the plaintiffs and defendants herein were cousins. They were living in separate houses. Ramanna had three children namely, Akkayamma, Venkatarayappa and 7 Malluramma. Akkayamma and Malluramma were given in marriage to two brothers at Talagavara.
8. Pillappa had two sons namely, Venkatappa and Narayanappa through first wife Bayamma.
Narayanappa had two sons namely, Doddavenkatarayappa, father of plaintiff Nos.2 and 3. N. Venkatarayappa, father of defendant Nos.2 to 4 through his first wife and one son and a daughter by name Byanna who is the father of defendant Nos.5 to 8 and Smt. Lakshmamma through his second wife. The elder brother of Narayanappa had four sons who are not parties to the suit. According to defendant Nos.1 to 3, when N. Venkatarayappa was a year old, Ramanna who had no children fostered N. Venkatarayappa. Ramanna performed the marriage of N. Venkatarayappa in the year 1946 with his grand daughter, Kempamma. Ramanna and his son N. Venkatarayappa had sugarcane crushers which 8 they used to lend to various farmers in Sidlagatta, Chintamani and Bagepalli Taluks. In the off season, N. Venkatarayappa used to do business by selling sheep and goats. Out of his earnings, Venkatarayappa, father of defendant No.2 o 4 purchased the suit schedule properties which are his self acquired properties. That defendant Nos.2 to 8 are in no way concerned with the suit schedule properties. Plaintiffs and defendants are cultivating their respective properties. Plaintiffs have not included the properties owned by defendant Nos.5 to 8 in the plaint schedule properties. Defendant Nos.1 to 3 therefore sought for dismissal of the suit.
9. On the basis of the aforesaid rival pleadings, the trial court framed the following issues for its consideration;
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"1) Whether the plaintiffs prove that the plaintiffs and the defendants are the members of joint family?
2) Whether the plaintiffs prove that the schedule properties are ancestral joint family ;properties of the plaintiffs and the defendants?
3) Whether the suit is bad for non-inclusion of the properties owned and enjoyed by the defendant No.5 to 8 and plaintiffs themselves?
4) Whether the plaintiffs are entitle for the relief claimed?
5) What order or decree? "
In support of their case, plaintiff No.1 examined herself as P.W.1 and another witness was examined as P.W.2. Plaintiffs produced twenty one documents which were marked as Ex.P.1 to Ex.P.21, while defendant No.3-Ramachandra Reddy was examined as 10 D.W.1. He produced forty three documents which were marked as Ex.D.1 to Ex.D.43. While considering the aforesaid evidence, the trial court answered issue Nos.1, 2 and 4 in the negative, issue No.3 in the affirmative and dismissed the suit filed by the plaintiffs by its judgment dated 2.3.2012.
10. Being aggrieved by the dismissal of the suit, plaintiffs preferred R.A.No.57/2012 before the First Appellate Court. Plaintiffs preferred three applications before the Appellate Court. The first was under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC) seeking impleadment of the purchaser of one of the suit schedule properties. Second, was under Order VI Rule 17 of the CPC seeking amendment of the plaint and third, under Order XLI Rule 27 of the CPC for additional evidence.
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11. The First Appellate Court while considering the said applications has disposed of the appeal itself and has remanded the matter to the trial court for re- adjudication of the suit after allowing the aforesaid applications which were numbered as I.A.Nos.3, 4 and 8.
12. Being aggrieved by the judgment and order of remand, defendant Nos.2, 3 and 4 have preferred this miscellaneous second appeal.
13. I have heard learned counsel for the appellants, learned counsel for the respondent Nos. 1 to 3 and learned counsel for respondent Nos.4 to 7 and perused the material on record.
14. The main contention of appellants' counsel is that the First Appellate Court not have disposed of the appeal and remanded the matter to the trial court at the stage of hearing the aforesaid applications. He 12 contended that the trial court after recording of the evidence had given a categorical finding in favour of the appellants herein vis-à-vis the right, title and interest to seek the relief of partition and separate possession of the suit schedule properties. Those findings have been casually set aside while setting aside the judgment of the trial court only for the purpose of remanding the matter. He submitted that merely because the plaintiffs in the suit filed the aforesaid applications, the First Appellate Court could not have decided to remand the matter, in the absence of giving a clear finding both with regard to the relevancy of the amendment and the circumstances under which the said application was filed and as to whether the amendment of the plaint could have been sought at the stage of appeal. In other words, it was contended that the First Appellate Court has decided to remand the matter without going 13 into the merits of the appeal and that the approach of the First Appellate Court is erroneous.
15. Per contra, learned counsel for the respondents supporting the order of remand particularly, learned counsel for respondent Nos.1 to 3/plaintiffs in the suit submitted that the First Appellate Court was justified in allowing the applications and that once the applications were allowed, the First Appellate Court in its discretion has decided to remand the matter to the trial court and that there is no fault in the said order.
16. In response, learned counsel for the appellants reiterated that the filing of the applications by the plaintiffs could not have led to automatically remanding the matter to the trial court. As a result, there has been no application of mind as such, the impugned order be set aside and the matter be re- 14 heard by the First Appellate Court both on the applications as well as on the main matter.
17. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arises for my consideration, is as to whether, the First Appellate Court was justified in remanding the matter to the trial Court for the purpose of recording additional evidence after additional written statement was filed and disposing the suit afresh by setting aside the judgment of the trial court.
18. It is noted that the plaintiffs who have filed the suit have sought the relief of partition and separate possession in respect of the suit schedule properties. The detailed narration of the relationship between the parties need not be reiterated. But a serious dispute has arisen with regard to the suit 15 schedule properties being the self acquired properties of N.Venkatarayappa, the husband of the first defendant and the father of defendant Nos.2 to 4 and as to whether they are joint family properties of the family of Narayanappa, son of Kencha Pillappa,the original propositus. In that regard, the trial court has given a finding to the effect that there does not exist a joint family as such and that the suit schedule properties are not the joint family properties. Those findings could not have been given go bye and brushed aside by the First Appellate Court while considering the applications filed by the plaintiffs in the appeal without giving reasons as to why the findings given by the trial court were erroneous.
19. By way of I.A. Nos. 4 and 8, plaintiffs in regular First Appeal before the First Appellate Court sought not only amendment of the plaint, but also production of additional evidence. There is no 16 application of mind by the First Appellate Court on those applications. In light of the findings of the judgment of the trial Court, the First Appellate Court ought to have considered as to whether those applications were maintainable having regard to the fact that they were filed at the stage of appeal and as to whether the condition precedent for allowing the said applications as stipulated in the Code of Civil Procedure, 1908 had been complied with or not. Merely because those applications had been filed by the plaintiffs, the First Appellate Court could not have remanded the matter while allowing the said applications in the absence of there being any application of mind on the merits of the appeal.
20. It appears that the First Appellate Court was carried away by the request made by the respondent/plaintiffs seeking remand of the matter, as they had filed the aforesaid applications and the said 17 request has been curiously granted by simply allowing the applications without there being any reasons assigned for doing so. The end result is that the First Appellate Court has just remanded the matter to the trial Court for reconsidering the suit along with additional evidence and the amendment made to the plaint. However, in the first instance, the reasons have not been assigned for allowing the said applications. Therefore, in my view, the approach of the First Appellate Court was wholly improper while dealing with the appeal as well as the applications filed by the respondents/plaintiffs.
21. In this regard, reliance could be placed on a judgment of this court in the case of Shantaveerappa v. K.N.Janardhanachari, reported in ILR 2007 KAR 1127, wherein this court has cautioned First Appellate Courts dealing with first appeals with regard to the manner of dealing with such appeals. Paragraphs 11 18 and 12 of the said judgment are extracted as under
for immediate reference.
" 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 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 19 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 ordinarily remand the case. It should see first whether it can 20 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 21 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 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 22 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 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 23 also avoiding docket explosion, within the existing legal frame work."
22. The aforesaid judgment has been followed in the case of Smt.Uma and Another v. Sri. N.V.Rajachari, Since dead by LRs reported in ILR 2010 KAR 3078, wherein it has been categorically held 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 applicable when a decree has been passed by the Trial Court on a preliminary issue. When an appeal is preferred and when the 24 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.
15. Order 41 Rule 23-A CPC is not attracted to the instant case, since the 25 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. "
23. While reading the impugned judgment in light of the aforesaid judgment, it becomes clear that the First Appellate Court has not considered the applications filed by the respondent/plaintiffs in light of pleadings and evidence as well as the judgment of the trial court, which are on record and has not assigned reasons as to why those applications ought 26 to be allowed. Merely because those applications were filed by respondent/plaintiffs who sought for remand of the matter, the first appellate court could not have conceded to that request by allowing the applications in a cavaliar manner. In the circumstances, the judgment and order of remand passed by the court below is set aside. The orders passed on the applications are also set aside.
24. The matter is remanded to the First Appellate Court by restoring R.A.No.57/2012 on the file of the said court.
25. The First Appellate Court is directed to dispose of the appeal having regard to the observations made by this court in the aforesaid judgments and the observations made above by me in the context of the present case.
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26. As the parties are represented by their respective counsel, they are directed to appear before the concerned First Appellate Court on 22/03/2017 without expecting any further notice to be issued by the said court to them.
27. The First Appellate Court, on noting the appearance of the respective parties, shall proceed to dispose of the applications as well as the appeal in accordance with law.
28. This appeal is disposed in the aforesaid terms. Parties to bear their respective costs.
In view of disposal of the appeal, I.A. 2/15 does not survive for consideration and is hence, disposed.
Sd/-
JUDGE Msu/S