Karnataka High Court
Smt.Vathsalabai W/O Suresh Shet vs Tukaram Bhikkushet Revenkar S/O ... on 15 February, 2013
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15th DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
MISCELLANEOUS SECOND APPEAL NO.126/2003
BETWEEN:
1. SMT. VATHSALABAI,
W/O SURESH SHET
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK
R/A MADHAVAN SOCIETY D
98 II FLOOR, JAYAPRAKASH ROAD,
NEAR COSMOPOLITON SCHOOL
ANDHERI WEST, BOMBAY 58.
2. SMT. KUNDABAI
SINCE DEAD BY L.Rs.
2(A) SHRI SADANAND NINGAPPA SHET
H/O KUNDABAI @ SUDHA SANANAND SHET,
H/O APPELLANT No.2, AGED 68 YAERS(W/O DECEASED A2)
2(B) MS NUTAN SADANAND SHET
D/O SADANAND NINGAPPA SHET,
AGED 37 YEARS,
2© MR. AMOGH SADANAND SHET,
S/O SADANAND NINGAPPA SHET,
AGED ABOUT 28 YEARS,
ALL ARE RESIDING AT FLAT NO.7, I FLORE,
SARAF SADAN, HANUMAN ROAD,
PITALE WADI, VILLE PARLE EAST
MUMBAI 500 057.
3. SMT VIJAYA,
W/O KRISHNA VERNEKAR
2
AGED ABOUT 55 YAERS,
OCC: HOUSEWIFE
R/AT NO.32, ASHOKA NAGAR
PUNA 411007.
...APPELLANTS
(By SRI. AJAY U. PATIL, ADV.)
AND:
1. TUKARAM, BHIKKUSHET REVENKAR
S/O BHIKKUSHET, SINCE DEAD
BY LRs
1(A) ARVIND TUKARAM REVENKAR
AGED ABOUT 55 YEARS
1(B) HARISH TUKARAM REVENKAR
AGED ABOUT 36 YEARS
BOTH ARE SONS OF TUKARAM B. REVENKAR
WHO SUBSTANTIALLY REPRESENT THE
INTEREST AND ESTATE OF
SRI. TUKARAM BHIKKUSHET REVENKAR
BOTH ARE RESIDING AT KOLIPETH
AMRATHA GALLI, HUBLI.
2. RAMDAS BHIKKUSHET REVENKAR
S/O BHIKKUSHET, AGEDA BOUT YEARS
INGALGI BUILDING, CBT NEW FORT, HUBLI.
3. PANDARINATH BHIKKUSHET REVENKAR
SINCE DEAD BY l.Rs.
3(a) MOHINI PANDARINATH SHET
W/O LATE SRI. PANDARINATH BHIKKUSHET
REVENKAR, AGED ABOUT 78 YEARS.
3(B) GANESH PANDARINATH SHET,
S/O LATE LATE PANDARINATH BHIKKUSHET
REVENKAR, AGED ABOUT 48 YEARS.
3© KAVITHA SHAM RAIKAR,
3
D/O LATE SRI. PANDARINATH BIKKUSHET
REVENKAR, AGED ABOUT 40 YEARS.
ALL ARE RESIDING AT ADYAPAKNAGAR,
NEAR SUBJAIL HUBLI 580 020.
4. TULSIDAS BHIKKUSHET REVENKAR
S/O BHIKKUSHET, AGED ABOUT YEARS
R/O NAVANAGAR, HUBLI.
5. SMT. SMITHA, W/O DATTATRAYA REVENKAR
AGED ABOUT 40 YEARS.
6. SNEHA, D/O DATTATRAYA REVENKAR
AGED ABOUT 20 YEARS.
7. SHREYAS, S/O DATTATRAYA REVENKAR
AGED ABOUT 18 YEARS.
8. SAVAN, S/O DATTATRAYA REVENKAR
AGED ABOUT 16 YEARS
SINCE MINOR REPRESENTED BY
5TH RESPONDENT
RESPONDENTS 5 TO 8 ARE RESIDING
AT CHITTAGUPPI PARK, BEHIND
LAMINGTON HIGH SCHOOL, HUBLI.
...RESPONDENTS
(BY SRI.VIJAYENDRA BHIMAKKANAVAR, ADV. FOR SRI. F.V.
PATIL, FOR R1(B)
SMT. V. VIDYA, ADV. FOR SRI. K. RAGHVENDRA RAO, FOR R5
TO R8. NOTICE TO R3(B) AND (C) IS HELD SUFFICIENT V.O.
DATED 06/01/2011. R1(A), R2, R3(A) AND R4 ARE SERVED
AND UNREPRESENTED.)
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER 43 R 1(U) OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 20/03/2003 PASSED IN R.A.NO.72/1994 ON
THE FILE OF THE I ADDL. DIST. JUDGE, DHARWAD, SITTING AT
HUBLI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 2.9.94 PASSED IN
O.S.NO.65/91 ON THE FILE OF THE PRL. CIVIL JUDGE, SR.DN,
HUBLI.
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THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR
DICTATING ORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This miscellaneous second appeal is filed by the plaintiffs in O.S.No.65/1991, assailing the order of remand dated 30th March 2003, passed in R.A.No.72/1994 by the 1st Additional District Judge sitting at Hubli.
2. For the sake of convenience, the parties would be referred to in terms of their status before the trial Court.
3. The appellants who are the plaintiffs filed a suit seeking a declaration that the plaintiffs and defendants 5 and 6 are the exclusive owners of the suit property and that mutation entry 3479A vide Ex.P-2 is not binding on them and for the relief of permanent injunction restraining defendant Nos.1 to 4 from invading their rights in respect of the suit property.
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4. It is the case of the plaintiffs that plaintiffs 1 and 2 and defendant No.6 are the daughters and defendant No.5 is the son of late Pundlik Bhikkusheth Revenkar. Defendant Nos.1 to 4 and the father of the plaintiffs are the legal representatives of late Bhikkusheth Revenkar. He did not acquire either moveable or immoveable properties. He maintained himself on account of his own labour. Subsequent to the death of Bhikkushet, his sons inherited nothing from their father and lived separately. The property situated in Block No.56 at Amargol(suit schedule property) was acquired by the plaintiffs' father out of his own exertion. He carried on his business and out of his earnings he had purchased the said property in the year 1967. His name was entered in the record of rights and he was in possession of the same till his death. That defendant Nos.1 to 4 have no right, title or interest over the suit schedule property. Defendant No.2 also has immoveable property in his name. Other three defendants are in service and they have acquired properties in their respective names. Plaintiffs' father 6 Pundalik being the eldest, helped defendant No.1 for some time whenever he was in need of financial help. Plaintiffs' father died on 14/06/1974 leaving behind his wife, plaintiffs 1 and 2 and defendants 5 and 6. Plaintiffs' mother was an illiterate lady and she was depending on defendant No.1 who was the eldest person in the family after the death of plaintiffs' father. Defendant No.1 dominated on the plaintiffs mother and her son and daughters. After the death of her husband, she was advised to give some applications and 'wardi' to the revenue authorities. Defendant No.1 himself took the signature of the plaintiffs and defendant Nos.5 and 6 on some blank papers. Plaintiff's mother Ratnabai died on 05/10/1981. Plaintiffs and defendant Nos.5 and 6 are the only legal representatives. Defendant Nos.1 to 4 in December, 1990 demanded partition in the suit property. Defendant No.5 made enquiries in that regard and he became aware that his father's brother had got the name of himself and others entered in the record of rights. Under these circumstances, the plaintiffs filed a suit seeking 7 declaration that they are exclusive owners of the suit schedule property and that the revenue entries are not binding on them.
5. After receipt of suit summons and court notices, defendant Nos.1 to 3 filed a common written statement which was adapted by defendant No.4. The defendants have admitted the relationship between the parties and also the fact that Pundalik died on 14/06/1974 leaving behind his wife Ratnabai, plaintiffs and defendant Nos.5 and 6 as his legal representatives. They have contended that Bhikkusheth originally belonged to Karwar District. He came to Hubli and started his profession by doing gold smith business. He acquired his own house in Tabib land. Later on the said house was sold and also gold cutting machine was sold as there were certain loans to be discharged. Thereafter, Pundalik opened a shop under the name and style of 'Revenkar Jewellary Mart' in Shivaji Chowk, Hubli. That the said shop is a joint family business. There has been no partition in the family that 8 the bothers have jointly purchased the plot in Chitaguppi Park wherein a house was constructed. Subsequently, the brothers started living independently since differences arose between defendant Nos.1 to 4 and 5. The business was also divided and the said defendants are living separately with other families. That the house property at Chitaguppi Park and the suit schedule property are the Joint family property of Pundalik and defendant Nos.1 to 4. That on 15/12/1985 defendant No.5 gave a wardi to the village accountant at Amargol, to enter his name and the names of defendant Nos.1 to 4. Accordingly, the village accountant entered the names. The mutation entries were thereafter made. That orders have also been passed under the provisions of the Urban Land Ceiling and Regulation Act in respect of the suit property. Therefore, defendants 1 to 4 sought for dismissal of the suit.
6. On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration:
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1. Do the plaintiffs prove that they had defendants 5 and 6 are exclusive owners of the suit property?
2. Do the plaintiffs prove that defendants 1 to 5 got effected M.E.No.3479A fraudulently and it is not binding on them?
3. Are the plaintiffs entitled to relief of declaration and injunction?
4. To what decree or order?
ADDITIONAL ISSUE:
Whether the suit filed is in time?
7. In support of their case, the plaintiffs examined one witness and produced three documents which were marked as Exs.P-1 to P-3 while the defendants examined two witnesses and produced 43 documents which were marked as Exs.D-1 to D-43. On the evidence of the said evidence, the trial Court answered issue Nos.1 to 3 and additional issue in the affirmative and accordingly decreed the suit of the plaintiffs. Being aggrieved by the 10 said judgment and decree, defendants 1 to 4 preferred R.A.No.72/1994 before the first appellate Court. Before the first appellate Court two applications were filed, one under Order VI Rule 17 of the Code of Civil Procedure(hereinafter referred to as the 'CPC') for amendment of the written statement and another application was under Order XLI Rule 27 of the CPC for production of additional evidence. After hearing the parties, the first appellate Court framed the following points for its consideration:
1. Whether the proposed amendment of W.S.(I.A.no.6) is necessary to decide the dispute between the parties?
2. Whether the defts 1 to 4 (appellants herein) have shown substantial cause for allowing the production of additional evidence?
3. Whether the remand of the matter is required for permitting the parties to lead additional evidence?
4. What order or decree?"11
8. It answered the points 1 to 3 in the affirmative and allowed the applications filed by defendants 1 to 4 and remanded the matter to the trial Court permitting the defendants to amend the written statement and also permitted to file rejoinder if any, permitted both parties to lead oral and documentary evidence and thereafter to dispose of the suit in accordance with law. The said order of remand is assailed in this miscellaneous second appeal.
9. I have heard the learned counsel for the appellants and the learned counsel for the respondents and perused the material on record as well as the lower court records.
10. It is contended on behalf of the appellants that the first appellate Court was not right in remanding the matter to the trial Court on the basis of the two applications filed by the defendants 1 to 4 requiring that the matter had to be retried by the trial Court. Drawing my attention to the two applications, it is contended that the application for amendment of the written statement 12 was unnecessarily filed as the subject mater of the written statement with regard to the property measuring seven guntas was already part of the evidence let in by defendant No.1. Therefore at the appellate stage it was not necessary to amend the written statement. It is also contended that the first appellate Court has not taken into consideration as to whether the additional document could be allowed having regard to the conditions mentioned under Order XLI Rule 27 of the CPC. Merely because documents are 30 years old, said application could not have been allowed. The first appellate Court has not discussed as to whether the findings of the trial Court are just and proper and on the basis of these applications, the matter has been remanded. It is alternatively contended that even if for a moment it is to be assumed that the application for additional evidence could have been allowed then the first appellate Court itself could have recorded the evidence and disposed of the appeal having regard to the voluminous evidence already recorded by the trial Court 13 wherein the first appellate Court could have reappreciated the matter.
11. Learned counsel for respondent Nos.5 to 8 has supported the arguments of the appellants.
12. Per contra, learned counsel for respondent No.1b while supporting the order of remand has stated that the case of the plaintiffs is that the suit schedule property is the self acquired property of late Pundalik father of the plaintiffs. In order to demolish the said case and to contended that it is the joint family property certain additional documentary evidence was produced in the form of a letter dated 23/04/1994 and certified copy of the 'wardi' dated 02/03/1940. These documents were not available with the parties earlier and as and when they were put forth, the first appellate Court was right in allowing the amendment of the written statement and so also the application for additional evidence and therefore the order of remand would not call for any modification in this appeal.
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13. Having heard the learned counsel on both sides and on perusal of the material on record as well as the original records, the only point that arises for my consideration is as to whether the first appellate Court was right in remanding the matter to the trial Court for retrial of the suit.
14. Incidentally while answering this question, the only point that has to be considered is as to whether the first appellate Court was right in allowing the application for amendment of the written statement filed under order VI Rule 17 of the CPC and the application for additional evidence filed under Order XLI Rule 27 of the CPC.
15. From the material on record, it is noted that the relationship between the parties is not in dispute. It is also not in dispute that deceased Pundalik-father of plaintiffs 1 to 4 and defendant Nos.5 and 6 originally belonged to Karwar and that their father constructed a house and started his goldsmith business. It is also not in dispute that 15 Bikkushet had 5 sons and 5 daughters and that he died sometime prior to 1938-1939. The father of the plaintiffs and defendant Nos.5 and 6 had died in the year 1974 and his widow Ratnabai died in the year 1981. The case put forth by plaintiffs and defendants 5 and 6 is that the suit schedule property was purchased by their father Pundalik in the year 1967 and the sale deed stands in the name of Pundalik(Ex.P-3) that he was doing business independently while his brothers defendants 1 to 4 independently carried on their respective business and that they had acquired properties in their own names. According to the plaintiffs there was no joint family property or any nucleus with the aid of which the suit schedule property was purchased. On the other hand the contention of the defendants 1 to 4 is that it is out of the joint family nucleus the suit schedule property was purchased and therefore the suit property was also joint family property. In this context there is already evidence let in to the effect that Bikkushet had acquired seven guntas of land at Tabib and he had constructed five houses 16 and out of the same four houses had been let out and one house was retained by the family. He has admitted in his evidence that he has not produced any document to substantiate this fact and he has denied the subject matter of the amendment sought pertains to Tabib land, which is also mentioned in the evidence of DW-1, which according to the defendants is a joint family nucleus out of which PW-1 had purchased the suit schedule property. If that is so, what is necessary to establish is that there was nucleus available which enabled Pundalik to purchase the property in his name rather in the name of the joint family. For this purpose, it was not necessary to amend the written statement. In order to bring on record the said fact, in fact, it is initially the case of defendants 1 to 4 that the suit schedule property is a joint family property, reference is made to seven guntas of land at Tabib land. It was for the defendants to establish that fact. Therefore, it was not necessary to amend the written statement at the stage of the first appeal. Therefore, the first appellate 17 Court was not right in allowing the application filed under Order VI Rule 17 of the CPC.
16. So far as the application filed under Order XLI Rule 27 of CPC is concerned, the said application has been filed by defendants 1 to 4 in order to produce the documents. The said documents are the letter dated 23.04.1944 which is stated to have been issued by the Hubli Municipality to Bikkushet and certified copy of 'wardi' dated 2.3.1940 with regard to CTS No.1529/20 measuring 7 acres 9 guntas in Hubli. Incidentally there is no reference to these properties by defendants 1 to 4 either in the written statement or in the amendment to the written statement or in the application seeking amendment to the written statement. However, the affidavit enclosed to the application filed under Order XLI Rule 27 CPC makes a reference to this item of the property. The first appellate Court has not applied its mind with regard to the relevance of these documents to the case of the defendants 1 to 4 which has been put forth by the trial Court and also in the 18 light of the evidence which has been let in by them. The first appellate Court merely states that "these documents are more than 30 years old documents and presumption under Section 90 of the Indian Evidence Act, the contents and signatures can be believed to be true by the Court." On the basis of the said reasoning the application for additional evidence has been allowed. Neither the conditions mentioned under Rule 27 or Order XLI CPC has been considered nor relevance to the facts of the case has been considered. In that view of the matter, allowing of the said application was not in accordance with law. Therefore under these circumstances, the order of remand made by the first appellate Court directing the trial Court to permit the defendants to amend written statement and also to permit the parties to let in additional oral and documentary evidence on the application filed under Order XLI Rule 27 of the CPC is not correct.
17. In the result, the impugned order of remand is set aside. The matter now stands remitted to the first 19 appellate Court to reconsider the applications filed under Order XLI Rule 27 of the CPC in the light of the observations made above and also the said application shall be considered while hearing the appeal on merits. If in the opinion of the appellate Court the said application requires to be allowed, the same may be done so at the time of final hearing in which event additional evidence on the said documents shall be recorded by the first appellate Court itself and to dispose of the appeal in accordance with law.
18. In this context reliance could be placed on the decision of this Court in 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 XLI 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 20 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 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 21 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 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 22 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 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 23 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 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 24 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."
Since the parties are represented by their respective counsel they are directed to appear before the first appellate Court on 22nd March 2013 without the necessity of further notice from the said court. Since the suit is of the year 1991, the first appellate Court to dispose of the RA as expeditiously as possible and at any rate within a period of six months from 22nd March 2013.
19. The first appellate court is directed to hear the appeal on merits first and then take up the application filed for production of additional evidence for consideration. 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 25 the said application, if the parties request that 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.
Parties to bear their respective costs.
The office to transmit the original records forthwith.
Sd/-
JUDGE kmv