Karnataka High Court
Shivanand S/O Shivabasappa ... vs Kareppa S/O Siddappa Surannavar, on 10 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
MSA NO.534 OF 2013
BETWEEN:
SHIVANAND S/O SHIVABASAPPA KOOGANAVAR,
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O: VANNUR, TQ: BAILHONGAL,
DIST: BELGAUM - 590 001.
... APPELLANT
(BY SRI R M KULKARNI, ADV.)
AND:
KAREPPA S/O SIDDAPPA SURANNAVAR,
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O: VANNUR, TQ: BAILHONGAL,
DIST: BELGAUM-590 001.
... RESPONDENT
(KAREPPA S/O SIDDAPPA-SD)
THIS MSA IS FILED U/SEC.43 RULE 1(U) OF CPC, AGAINST
THE JUDGEMENT AND DECREE DTD:16.01.2013 PASSED IN
R.A.NO.1/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
BAILHONGAL, ALLOWING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DTD:30.11.2011 PASSED IN
O.S.NO.27/2007 ON THE FILE OF THE PRL. CIVIL JUDGE AND
2
J.M.F.C., BAILHONGAL, PARTLY DECREEING THE SUIT FILED
FOR DECLARATION AND MANDATORY INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned Counsel for the appellant.
2. The present Miscellaneous Second Appeal is directed against the judgment and decree passed by the First Appellate Court i.e., the Court of Senior Civil Judge, Bailhongal, Belgaum District, in R.A.No.1/2012 dated 16.01.2013. The appellant was the plaintiff in an original suit bearing O.S.No.27/2007 which was pending on the file of the Court of Prl. Civil Judge, Bailhongal. The respondent herein was the defendant in the said suit. The parties will be referred to as the plaintiff and defendant as per their ranking in the Trial Court.
3. A civil suit had been filed for the reliefs of declaration of title and for mandatory injunction in respect of vacant plot attaching with GP No.390 in Vannur Village of Bailhongal identified as ABCD in the hand sketch appended to the plaint. The said suit had been contested by the respondent herein as 3 defendant. Issues had been framed and parties had entered the witness box to support their respective contentions. Ultimately suit came to be decreed vide considered judgment dated 30.11.2011 as against which the appeal came to be filed before the Court of Senior Civil Judge, Bailahongal, in R.A.No.1/2012. Several grounds had been urged in the appeal.
4. After hearing the arguments of the learned Counsel appearing for the parties, the First appellate Court Judge has allowed the appeal and remitted the matter to the Trial Court with a direction to frame necessary issues and to give opportunity for both the parties to lead additional evidence if any, on the issues that would be framed. Reliance has been placed upon by the learned First Appellate Court on the decision reported in 1992(2) Kar LJ 548 in the case of Nanjundachari Vs. The Chairman, K.E.B., Bangalore. What is observed in the said decision is that omission to frame proper issue would result in the miscarriage of justice and that such finding is liable to be set aside and case was remanded for fresh trial on proper issues being framed. 4
5. It is to be seen that the said decision rendered in Nanjundachari's case is in regard to Order 14 Rule 1 of CPC read with Section 12(2) of CPC. Framing of proper issues is an absolute necessity for effective disposal of the matter in dispute. It is true that non-framing of proper issue would give rise to injustice and that can be set-right by framing proper issues and allowing parties to lead additional evidence on the strength of the issues reframed or recasted or framed afresh. But anyhow the power of the First Appellate Court in regard to the remanding of such matters on the ground of non-framing of issues was not dealt in the said decision. On the other hand, this Court had an occasion to deal with the power of the Appellate Court in regard to the remanding of matters by the First Appellate Court to the Trial Court on the grounds of non-framing of proper issues or non-providing of proper opportunities to lead additional evidence.
6. In a decision reported in the case of Shantaveerappa Vs. K.N.Janardhanachari reported in ILR 2007 KAR 1127, this Court had an occasion to deal with the relevant provisions of dealing with remand i.e., Rule 23 and 23-A of 5 Order 41 and Rules 27, 28 and 29 of CPC. On analysing the Rules 23, 23-A, 27, 28 and 29 of CPC, this Court has clearly held that the Appellate Court has all the trappings of a Trial Court dealing with a regular civil suit. It is held that instead of remanding the matter on the ground of non-framing of issues or non-providing of opportunities to lead additional evidence or non-consideration of certain applications, it would be better if the First Appellate Court itself takes up the responsibility of framing proper issues or recasting issues and recording additional evidence, if any, or in the alternative to get the evidence recorded by the Trial Court and solicit a report to that effect. It need not be reiterated that whenever additional evidence is recorded by the Trial Court on a direction by the Appellate Court, the Appellate Court will definitely give an opportunity for the parties to file objections to such a report of the Trial Court sent to the Appellate Court. It is also made clear that normally the First Appellate Court will always be presided over by a reasonably experienced Judge who will have all expertise and experience to dispose of 6 such matters as expeditiously as possible. In the light of the Trial Court being overburdened with innumerable civil and criminal cases, it is not advisable for the First Appellate Courts to remand the matter in a very mechanical way.
7. Admittedly, remand so made by the First Appellate Court in the present case is not an open remand. The remand so made is a limited one and therefore the said remand is not justified either in law or on facts. For better appreciation of the decision rendered in Shantaveerappa's case, paragraph-10 at page 1133 is relevant and the same is reproduced below:
" 10. In cases where the trial Court has omitted to frame or try any issue or to determine any question of fact, the Appellate Court if necessary frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required with a direction to return the evidence to the Appellate Court together with findings thereon and the reasons 7 therefor within a time to be fixed by the Appellate Court. On receipt of such finding the Appellate Court may dispose of the appeal on merits. Here it would be a case of limited remand and not an open remand. In case where the Appellate Court feels issues have to be resettled and that the trial Court has proceeded wholly upon some ground other than that on which the Appellate Court proceeds, still the evidence upon the record is sufficient, the Appellate Court without resorting to an order of remand resettle the issues and pronounce judgment on merits on all issues. Therefore, it is clear the legislature has provided for all contingencies."
8. In the light of the broad guidelines laid down by this Court in Shantaveerappa's case and the law laid down by the Hon'ble Supreme Court in H.P.Vedavyasachar Shivashankara and Another reported in (2009) 8 SCC 231, this Court is of the clear opinion that the remand so made is wholly unjustified and not proper.
9. Consequently, the appeal has to be allowed and the impugned judgment passed by the First Appellate Court will 8 have to be set aside and the matter has to be remitted to the First Appellate Court for consideration of the same in the light of the observation made by this Court.
ORDER The Appeal is allowed. The impugned judgment passed in R.A.No.1/2012, which was pending on the file of Senior Civil Judge, Bailhongal, is set aside.
The matter is remitted to the First Appellate Court to consider the matter. In the light of the observation made and if necessary, issues can be recasted or framed afresh and opportunity can also be given to lead additional evidence apart from what has already been recorded.
The learned First Appellate Judge shall try to dispose of the matter within a period of six months from the date of receipt of a copy of this judgment and the parties are directed to co-operate with the First Appellate Court.
SD/-
JUDGE JT/-