Karnataka High Court
Chanamallayya Ningayya Shivayogimath vs Sangappa Basappa Lakshatti & Ors on 10 January, 2017
Equivalent citations: 2017 (3) AKR 790, (2018) 1 ICC 418
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
MISCELLANEOUS SECOND APPEAL NO.200101/2016
BETWEEN:
CHANAMALLAYYA NINGAYYA SHIVAYOGIMATH
AGED ABOUT 80 YEARS
OCC: AGRICULTURE
R/O MUDDEBIHAL
DIST. VIJAYPUR- 586212
...APPELLANT
(BY SRI AMEET KUMAR DESHPANDE, ADV.)
AND:
1. SANGAPPA BASAPPA LAKSHATTI
AGED ABOUT 75 YEARS,
OCC: BUSINESS
(CLOTH MERCHANT)
R/O MAIN ROAD
MUDDEBIHAL
DIST. VIJAYPUR- 586 212
2. SHIVAYOGEPPA SANGAPPA KADI
SINCE DECEASED BY HIS LRS
2A. SHARADA
W/O SHIVAYOGEPPA KADI
2
AGED ABOUT 63 YEARS
OCC: HOUSEHOLD WORK
R/O VEERESHWAR NAGAR
MUDDEBIHAL
VIJAYPUR- 586 212
2B. GEETA
W/O SANTOSH KADLOOR
AGED ABOUT 42 YEARS
OCC: HOUSEHOLD WORK
R/O VEERESHWAR NAGAR
MUDDEBIHAL VIJAYPUR- 586 212
2C. RENUKA
W/O SHRISHAIL VAILI
AGED ABOUT 37 YEARS
R/O C/O SHRISHAIL VAILI HUNASAGI
TQ. SURPUR DIST.YADGIR- 586 212
2D. PURNIMA
W/O MAHENTESH ALMATTI
AGED ABOUT 33 YEARS
OCC: HOUSEHOLD WORK
R/O NARAYANPUR
TQ. SURPUR DIST. YADGIRI- 586 212
2E. SHANTA
W/O SHARANU IDDALAGI
AGED 31 YEARS
OCC: HOUSEHOLD WORK
R/O VEERESHWAR NAGAR
MUDDEBIHAL VIJAYPUR- 586 212
2F. SHARANABASAV SHIVAYOGEPPA KADI
AGED ABOUT 27 YEARS
OCC: PEON
R/O VEERESHWAR NAGAR
MUDDEBIHAL, VIJAUYPUR- 586 212
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3. CHANNAPPA SIDDAPPA KANTI
AGED ABOUT 82 YEARS
OCC: BUSINESS
R/O MAIN ROAD
MUDDEBIHAL VIJAYPUR- 586 212
4. PRABHU SHIVALINGAPPA KADI
AGE: 53 YEARS,
OCC: BUSINESS
R/O SWEETMART SHOP
MUNICIPAL COMPLEX
NEAR DURGA TEMPLE
MUDDEBIHAL VIJAYPUR- 586 212
5. BABU PAYANNA BIRADAR
AGE: 54 YEAR,
OCC: BUSINESS (BOOK STALL)
R/O MAIN ROAD, MUDDEBIHAL
VIJAYPUR- 586 212
... RESPONDENTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADV.)
THIS MSA FILED U/O. 43 RULE (1)(u) OF CPC,
AGAINST THE JUDGMENT AND AWARD DATED 29.07.2016
PASSED IN R.A.NO.14/2013 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE VIJAYPUR AT VIJAYPUR, SETTING ASIDE
THE JUDGMENT AND DECREE DATED 03.01.2013 PASSED
IN O.S.NO.228/2001 ON THE FILE OF THE SENIOR CIVIL
JUDGE & JMFC MUDDEBIHAL AND REMANDING THE
MATTER TO THE TRIAL COURT FOR DISPOSAL OF THE
SAME ACCORDING TO LAW.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is preferred by the plaintiff against a Judgment of remand passed by the I Addl. Dist Judge, Vijaypur directing the Trial Court that an issue framed by it be heard as preliminary issue and if it is held that the suit is maintainable, then to decide the suit on all issues.
2. Material facts required to decide this appeal are that the appellant filed the suit to pass decree of declaration and perpetual injunction in respect of the suit property. By a decree dated 03.07.2008 the suit was dismissed. An appeal filed was allowed and the case remanded for decision afresh by giving opportunity to the parties to adduce evidence. After remand the plaint was amended to incorporate alternate relief of recovery of possession. Written statement was filed. Seven issues were raised. Both sides adduced evidence, oral and documentary. A Court Commissioner appointed to conduct local inspection having executed the Commission Warrant was examined. Record relating to execution of the 5 Commission Warrant and Report were marked. Upon hearing of arguments suit was decreed and the plaintiff was declared as owner of suit property. However, the relief of possession and perpetual injunction was negated. Feeling aggrieved, the plaintiff filed appeal and the defendants filed cross objections. After hearing of arguments, the following points were raised for consideration:
" (1) Whether the framing of issue regarding maintainability of suit by the lower Court is necessary for disposal to hear this appeal on the merits of the case?
(2) Whether the respondents / defendants are entitled to seek relief under cross-objections as prayed for against the judgment and decree in appeal? "
3. By answering point No.1 in the affirmative and point No.2 in the negative and after framing an issue, the appeal was allowed and the cross objection was dismissed. The issue framed reads thus:
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" Whether the suit of the plaintiff is maintainable in a representative capacity seeking relief of declaration of title with possession and relief of injunction and in alternate relief in case, any portion of the suit property not found in possession, to hand over the possession? The impugned Judgment and Decree was set aside and case remitted to Trial Court with a direction that the issue framed (extracted supra) be heard as preliminary issue and if it is held that the suit is maintainable, then to decide the suit on all issues. Assailing the said Judgment, this Miscellaneous Second Appeal, under Order 43 Rule 1(u) CPC, was filed.
4. Sri Ameet Kumar Deshpande, learned advocate contended that Lower Appellate Court has acted illegally in remitting the case for the second time to Trial Court. He submitted that despite the defendants not raising question regarding maintainability of the suit, either before the Trial Court or before the First Appellate Court, issue relating to maintainability was raised and as a short-cut, case was remanded. He submitted that issue relating to 7 maintainability of the suit, in suing the defendants in their representative capacity, is not one which would affect the jurisdiction of Court. He submitted that despite suit being maintainable and Lower Appellate Court being competent to decide even the issue relating to maintainability has committed illegality in passing Judgment of remand. Learned counsel criticised the approach of Appellate Judge and contended that the learned Appellate Judge has shirked from his responsibility in deciding the entire case on its merit by appreciation of the record. Learned advocate submitted that the impugned Judgment has caused substantial injustice and given rise to substantial questions of law, raised in the appeal memorandum. Reliance was placed on an order passed in the case of MOHAMMED NAYAZULLA Vs. THE HASSAN DISTRICT CENTRAL CO-OPERATIVE BANK LTD. AND ANOTHER ( W.P. No.291/2014 DECIDED ON 02.04.2014).
5. Sri Harshavardhan R. Malipatil, learned advocate on the other hand submitted that having regard 8 to the facts and circumstances of case, the appellant would not suffer any prejudice on account of Trial Court deciding the case by considering maintainability of suit in the first instance. Learned counsel submitted that there need not be any pleading regarding maintainability of suit, as it is for the Court to consider maintainability or otherwise of the suit i.e. when an issue arises, whether it has jurisdiction to decide the case.
6. Perused the record and considered rival contentions. Point for consideration is, whether the impugned Judgment of remand is illegal?
7. Learned Dist. Judge has raised the issue, extracted supra, and directed that the said issue shall be heard as a preliminary issue by Trial Judge and then decide the suit i.e., depending upon the finding regarding maintainability or otherwise of the suit. Learned Dist. Judge nowhere in the Judgment finds that Judgment of Trial Court is wrong and / or requires to be set aside / 9 reversed, so as to satisfy the conditions of Order 41 Rule 23 CPC.
8. The power of an Appellate Court to pass Judgment of remand and send the case back for trial is well settled. A Court should be very loathe to remit the case particularly when the parties have fought the litigation for considerable period. If Trial Court has not disposed of the suit on a preliminary point but has delivered Judgment on merit, it is the duty of Appellate Court to deal with appeal on all aspects. It is only in exceptional cases, where the Judgment of Trial Court is wholly unintelligible or incomprehensible, that Appellate Court can remand the case to Trial Court. Merely because there is some defect or infirmity in the reasoning of Trial Court, it cannot be a ground for Appellate Court not to do its duty of deciding the appeal on merit. Appellate Court will be shirking its responsibility if it simply and mechanically remands the case to Trial Court without applying its mind as to whether the finding recorded by 10 Trial Judge is correct or not and / or whether it should be set aside or reversed. Appellate Court should bear in mind that the party/litigant who had incurred expenses and undergone the ordeal and trouble of protracted trial would suffer by remanding the case to Trial Court. If trial has taken place and evidence on record is sufficient the case should be decided on all issues /points. If an issue relating to maintainability of the suit were to arise and has not been decided by Trial Court, such an issue being not an issue of pure fact but an issue of law should be decided by Appellate Court itself.
9. Order 41 Rule 23 CPC makes clear that no order of remand can be made except when the suit has been disposed of on a preliminary issue. There may, however, be a case in which the suit was not decided on preliminary point and yet the Court passes Judgment of remand in exercise of its inherent power. An order of remand should not be made mechanically, as it would 11 make the parties to again wait for further period and there might be an appeal again by one of the parties.
10. In P. PURUSHOTHAM REDDY AND ANOTHER Vs. PRATAP STEELS LTD. (2002) 2 SCC 686, Apex Court has held as follows:
" 10. The next question to be examined is the legality and propriety of the order of remand made by the High court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court are required to be returned to the 12 appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati v.Sushila Mahendra nanavati (AIR 1965 SC 364 at p.399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now 13 exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A or Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule
25...."
(emphasis is supplied) 14
11. In UMA Vs. N.V. RAJACHARI, ILR 2010 KAR 3078, by considering the provision under Order XLI and Rules 23 to 25 CPC, it was held as follows:
" 19.... If the plaintiffs have not produced relevant evidence or the Trial Court has not correctly appreciated the evidence, it is for the Appellate Court to do its duties, keeping in view the provisions under Rules 25, 27, 29 and 31 of Order 41 CPC".
12. The remand of the cased leads to delay and causes prejudice to the parties to the lis, as an unwarranted order of remand gives the litigation an undeserved lease of the life and, therefore, must be avoided. When the evidence is available, the court should decide the appeal one way or the other. If necessary issue has not been raised, issues can be re-casted or additional issued raised and the appeal should be decided. Appellate Court being headed by the Senior and experienced Judicial Officer should keep in view the power of Appellate Court under S.107 of CPC and the guidelines provided as per 15 Order XLI, Rules 24 to 31 of CPC and decide the appeal and cross objection.
13. The Court below, instead of considering the record and deciding the controversy between the parties finally, has passed the judgment of remand, which is arbitrary.
For the foregoing reasons, impugned Judgment and Decree being indefensible, appeal is allowed and impugned Judgment and Decree set aside. As R.A. No.14/2013 has not been decided in accordance with law, case stands remitted to Dist. Court, Vijayapur for consideration and decision by keeping in view the observations made supra.
Both parties are directed to appear before the Dist. Court, Vijayapur on 04.02.2017 and receive orders. Appeal be decided with expedition and before 30.06.2017.
Sd/-
JUDGE sac*