Andhra Pradesh High Court - Amravati
Shaik Kalesha Kalemuddin vs P Gurubrunda Kumari on 4 November, 2023
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.574 of 2018, CIVIL
REVISION PETITION Nos.7512 and 7285 of 2018
COMMON JUDGMENT :
The present CMA is filed against the judgment and decree dated 20.10.2017 passed in A.S No.123 of 2009 on the file of Principal District Judge, Nellore, SPSR Nellore District in O.S No.330 of 1988 on the file of III Additional Junior Civil Judge, Nellore.
2. Originally the suit in O.S No.330 of 1988 was filed by the plaintiff/appellant herein before the III Additional Junior Civil Judge, Nellore (for short "the trial Court") for grant of declaration and for grant of mandatory injunction. The same was partly allowed in favour of the plaintiff with suit costs and declaring the plaintiff's title over the suit schedule property in BEFC with as width of 5 feet 8 inches from E to B and 7 feet between F to C to the plaintiff and also directed the defendants to deliver the vacant possession within three months from the date of judgment, however failing which the plaintiff is at liberty to do the same due to process of law. Aggrieved by the same, the 7th defendant in O.S.No.330 of 1998 has preferred 2 an appeal in A.S No.123 of 2009 on the file of the Principal District Judge, Nellore (for short "the first appellate Court").
3. For the sake of convenience, the parties herein after referred to as arrayed in the suit in O.S.No.330 of 1998 before the trial Court.
4. The plaintiff instituted a suit in O.S No.330 of 1988 before the trial Court and she is the absolute owner of the suit property shown as ABCD in the plaint plan, to an extent of Ac 0.16 ½ cents purchased from one Lade Mohan Rao under a sale deed dated 15.5.198 and the plaintiff constructed a house with asbestos sheet roof. While so, the defendants No.1 to 3 put up iron fencing to the north of their site, encroaching into the plaintiff's site and the plaintiff demanded them to remove fencing. Though the defendants agreed to remove, filed a suit in O.S No.610 of 1985 on the file of I Additional Junior Civil Judge, Nellore for grant of permanent injunction, which was a counterblast to the claim of the plaintiff. On the other hand, the defendants No.2 and 3 sold their site to the defendants No.4 to 6, who are subsequent purchasers, impleaded as proper and necessary parties, and thus the plaintiff filed suit. 3
5. The defendants No.1, 2 to 5 resisted the suit of plaintiff. The 1st defendant filed written statement and the same was adopted by defendants No.2 to 5 and while denying all the allegations made in the plaint, stated that the defendants No.2 and 3 acquired under their sale deed, and 3rd defendant sold an extent of 40 Ankanams, with specified boundaries, to 4th defendant, with specified boundaries, to 4th defendant, under registered sale deed dated 15.6.1988, and defendants No.2 and 3 are the owners of site shown as BEFC in plaint plan, and they are in possession of the same, and plaintiff has no right or interest, in the said site shown as BEFC, prayed to dismiss the suit.
6. The 6th defendant remained ex parte before the trial Court.
7. Basing on the above pleadings, the trial Court has framed the following issues:
i) Whether the plaintiff is entitled to declaration and possession of BEFC site as per plaint plan?
ii) Whether the plaintiff is entitled for mandatory injunction as prayed for?
iii) To what relief?
8. During the course of trial, on behalf of the plaintiff, she herself examined as PW.1 and Ex.A1 to Ex.A12 were 4 marked and on behalf of the defendants No.1 to 5, 4 th defendant was examined as DW.1 and no documents were marked on their behalf.
9. The trial Court after hearing both sides and upon perusing the entire material available on record, partly decreed the suit vide judgment and decree dated 20.10.1992 declaring that the plaintiff is the absolute owner of site shown as BEFC in the plaint plan, to a width of 5 feet 8 inches from E and B, and 7 feet between F to C, with a direction to defendants to deliver vacant possession of the same, within three months, and as the iron fencing was removed during pendency of the suit, hence the relief of mandatory injunction was negative.
Being not satisfied with the same, the defendants No.4 and 5 filed an appeal in A.S.No.19 of 1998 before the II Additional District Judge, Nellore. During pendency of the said appeal, the defendants filed I.A No.98 of 1998 under Section 7-A of A.P. land Grabbing (Prohibition) Act 1982 to transmit the appeal to the Special Tribunal constituted under the Act, on the ground that the plaintiff contended in her case that defendants trespassed into suit property. The same was dismissed vide order dated 11.11.1998 with an observation that the dispute involved in the suit is relating to boundary 5 dispute between the parties, and not a dispute of land grabbing."
10. Aggrieved by the said order, the defendants No.4 and 5 preferred CRP No.5215 of 1998 before this Court and the same was allowed vide order dated 29.6.1999 holding that the dispute involved in the suit is triable by land grabbing tribunal' and consequently the judgment dated 20.10.1992 made in O.S No.330 of 1998 on the file of trial Court was set aside. Pursuant to the order of the High Court in CRP No.5215 of 1998, the proceedings in the said O.S No.330 of 1998 were transmitted to Special Tribunal and it was registered as Original Petition No.2 of 2000.
11. Basing on the above pleas, the trial Court also framed the following additional issues on 11.9.2006:
i) Whether the 7th defendant is the absolute owner of plaint schedule property?
ii) Whether this court has no jurisdiction to entertain the suit?
12. The Court blow, once again, on considering the evidence adduced by the plaintiff and defendants and the material placed on record, partly decreed the suit of plaintiff vide judgment dated 15.6.2009. Feeling aggrieved by the impugned judgment dated 15.6.2009 in O.S. No.330 of 1998, 6 the 7th defendant has preferred the present A.S No.123 of 2009 on the file of the first appellate Court against the plaintiff and defendants No.1 to 3, 5, and 6, by raising some grounds. On hearing the 7th defendant and plaintiff, and upon perusing the material available on record including the findings of the trial Court in its impugned judgment, the first appellate Court has framed the following point for consideration:
Whether the decree and judgment dated 15.6.2009 made in O.S No.330 of 1998 on the file of III Additional Junior Civil Judge, Nellore, are sustainable in law?
13. After perusing the entire material and on considering the submissions of both the counsels, the first appellate Court has allowed the appeal setting aside the judgment and decree dated 15.6.2009 made in O.S No.330 of 1988 on the file of the trial Court and the said suit was remanded to III Additional Junior Civil Judge, Nellroe for disposal afresh and also directed to decide the effect of death of 4th defendant on the suit, and by answering the additional issues framed on 11.9.2006 therein and also directed the trial Court to dispose of the suit at the earliest, not later than three months from the date of receipt of judgment. Challenging the same, the present Civil Miscellaneous Appeal came to be filed by the appellant/plaintiff.
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14. On receipt of the above judgment in A.S., the trial Court reopened the case for fresh consideration and at that stage, the 7th defendant has filed I.A No.642 of 2018 and I.A No.543 of 2018 before the trial Court seeking to recast the issues by framing additional issues and also seeking to reopen the suit to adduce evidence in support of D7. The same were dismissed by the trial Court vide separate orders dated 8.11.2018 on the ground that if D3 and D4 sold away the property to the petitioner/D7 during the pendency fo the suit and they died, the entire suit cannot abated as the present petitioner/D7 is the legal survivor of the deceased since he is claiming his rights over the property through the deceased D3 and D4 and hence the trial Court does not see any reasonable ground to reopen the suit to adduce further evidence. Questioning the same, the 7th defendant has preferred CRP Nos.7285 of 2018 and 7512 of 2018.
15. While so, during pendency of the CMA No.574 of 2018, learned counsel for the respondent in CRP No.7512 of 2018 represented that this matter is connected to CMA No.574 of 2008 and the disposal of the said appeal has impact on the result in CRP No.7512 of 2018 and CRP No.7285 of 2018 and hence requested to club these matters.
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16. Since the issue involved in the present three matters viz., CMA No.574 of 2018, CRP No.7512 of 2018 and CRP No.7285 of 2018, the same are taken up together for disposal by a common judgment.
17. This Court, vide order dated 25.04.2019, in I.A No.1 of 2018, has granted interim stay of all further proceedings in O.S No.330 of 1998 till 12.6.2019 and the same is extended from time to time. Later, the present three matters were clubbed.
18. Heard Sri V. Siva Prasad Reddy, learned counsel for the appellant in CMA and learned counsel for the respondents in CRPs and Sri P. Sridhar Reddy, learned counsel appearing for the respondents in CMA and learned counsel for the petitioner in CRPs.
19. On hearing, learned counsel appearing for the appellant submits that the judgment and decree of the first appellate Court is contrary to law, weight of evidence and probabilities of the case. He submits that the first appellate Court has erred in remanding the suit on the ground that the additional issues which were framed on 11.9.2006 were not answered by the trial Court. He further submits that the first 9 appellate Court has erred in remanding the suit in the absence of any plea taken either by the 1st respondent/7th defendant or any of the defendants in their written statements that the suit is bad for non joinder of necessary parties and proper parties i.e., legal representatives of the 4th defendant failing to note that the wife of the 4th defendant is proper party to the suit. The first appellate court ought to have considered that the power of remand to be exercised by the first appellate Court sparingly and the appellate court has same power on question of law and fact as that of trial court, the power of remand is strictly a limited power. He further submits that the lower appellate court ought to have considered that the appellate Court has ample power to decide the unanswered issues and frame new issues unless there is necessity for recording evidence, lower appellate Court can decide any issue which is necessary for disposal of the case without delay.
20. To support his contentions, learned counsel for the respondents has relied upon a catena of decisions reported in
(i) Shivshankara and another vs. H.P. Vedavyasa Char1, wherein the Hon'ble Apex Court held that:
We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when 1 2023 Livelaw (SC) 261 10 the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. In this case, it is to be noted that along with the deceased 3rd defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest. Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the non- substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail.
(ii) In a case of Sathyanath and another versus Sarojamani2, wherein the Apex Court held that:
The provisions of Order XIV Rule 2 are part of the procedural law, but the fact remains that such procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language prior to the unamended Order XIV Rule 2. If the issue is a mixed issue of law and fact, or issue of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the Court may decide such issues with the sole objective for the expeditious decision. Thus, if the Court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.
21. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors.13, this Court held as under:
"39. Our courts are usually short of time because of huge 13 (2012) 6 SCC 430 pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for 2 (2022) 7 Supreme Court cases 644 11 all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."
(iii) In another case reported in Dhurandhar Prasad Singh versus Jai Prakash University and others3, wherein the Apex Court held that :
Now we proceed to consider the second question posed, but before doing so, for better appreciation of the point involved, it would be appropriate to refer to the provisions of Order 22 Rule 10 of the Code which runs thus:-
10. Procedure in case of assignment before final order in suit.(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
21. Learned counsel for the appellant while relying upon the above citations submits that, it is settled law that when a suit is remanded for a decision afresh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order, or enter into questions falling outside its limit. He further submits that, no jurisdiction in the trial Court to allow an amendment of the pleadings, which was outside the scope of the remand order. Therefore, learned 3 (2001) 6 Supreme Court Cases 534 12 counsel requests this Court to pass appropriate orders by setting aside the impugned orders in the present cases.
22. Per contra, learned counsel for respondents submits that the first appellate court has rightly concluded and remanded the matter back to the trial Court for fresh disposal and hence prayed to dismiss the appeal. To support of his contentions, learned counsel for the repondents has relied upon a decision of this Court reported in Sultan Saleh Bin Omer v. Vijayachand Sirimal4, wherein the Andhra Pradesh High Court held that :
17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other, hand, according to Order 15, Rule 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In eases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalised by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or making documents, merely on the ground that the trial is closed and the matter is posted for arguments, whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated.
18. I am supported in this view by the decision in Hans Raj v. Sohan Singh, , It was observed by Harnam Singh, J., that the expression "hearing of the suit" means the hearing at which the Judge would be taking evidence or hearing arguments, or would have to consider the 4 Air 1966 ANDHRA PRADESH 295 13 questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it.
23. Learned counsel for the respondents while relying upon the above citation, submits that, according to Order 15, Rule 3, the hearing of the suit includes both production of evidence, as well as argument. In cases, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalized by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or making documents, merely on the ground that the trial is closed and matter is posted for arguments, whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated. Therefore, learned counsel submits that the first appellate Court has rightly held and hence prayed to dismiss the present CMA.
24. On perusing the impugned judgment in A.S No.123 of 2009, it is observed that the suit property belongs to A. Parandhamaiah-4th defendant, who is the husband of 5th defendant and father of 2nd defendant, and the 7th defendant 14 purchased the suit site under registered sale deed dated 9.8.1990 and since then he is in possession and enjoyment of same, and 7th defendant also purchased another item, situated to the west of suit site, and thereafter constructed a three-
storied building by spending Rs.22.00 Lakhs, and suit site is the only way to reach his house from Aravind Nagar main road, and there is no to other way to reach his house.
25. It is also observed that, basing on additional pleas, the trial Court has framed additional issues on 11.9.2006 but the trial Court has not discussed about the additional issues. This Court is of the view that, in a case, where even in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented din the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. 15
26. It is also pertinent to mention here that, as per Section 99 of CPC, reads as under:
Section 99 - No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1 [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :
27. On a plain reading of the entire proceedings that went on before the trial Court, as well as its findings in the impugned judgment, three primary questions that hover in the proceedings, and they need to be addressed at first, before going into the factual aspects, and to re-appreciate the evidence available on record, are as follows:
1) The death of 6th defendant during pendency of appeal on 8.5.2015;
2) The death of 4th defendant during pendency of the suit in O.S No.330 of 1998 on 6.1.1999; and
3) The additional issues No.1 and 2 framed by the trial Court on 11.9.2006, went unanswered in the impugned judgment.
28. So, in view of the above, the first appellate Court has rightly pointed out the above aspects. It is also observed in the impugned judgment that the first appellate Court held in para-14 (iii) that "this issue No.1, answered in favour of plaintiff declaring her right o suit property is sufficient to hold 16 that additional issue No.1 framed, shall go negatively against the 7th defendant, and there is no need to further give a specific finding or decision on the said issue, but however, the Court below has totally ignored the additional issue No.1 and has not at all referred in its judgment, it clearly establishes that the trial Court has failed in its duty to answer the said issue.
29. Viewed from any angle, the first appellate Court has rightly allowed by setting aside the impugned judgment and decree dated 15.6.2009 passed in O.S No.330 of 1998 on the file of the trial Court and remanded the matter back to the trial Court for fresh disposal. Therefore, finding no merit in the instant civil miscellaneous appeal and devoid of merits, the same is liable to be dismissed.
30. Accordingly, the Civil Miscellaneous Appeal is dismissed.
31. Insofar as CRP Nos.7512 of 2018 and 7285 of 2018 are concerned, since the main suit itself is remanded back to the trial Court for fresh disposal, there is necessity to reopen the suit and recast the issues which are necessary for determining the matters in controversy between the parties in 17 the above suit, particularly recasting of issues taking into consideration of the defence taken by the 7th defendant only and allow him to adduce his evidence.
32. It is pertinent to refer to Order 14 Rule 5 of CPC, which reads as under:
ORDER 14 RULE 5 CPC :
Power to amend and strikeout issues:
(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
33. Therefore recast the issues and recasting of issues can be done at any stage of the suit even by the date of judgment suo motu. Therefore, this Court deems fit to allow these revision petitions by setting aside the impugned orders in both the revision petitions.
34. Accordingly, the Civil Revision Petitions are allowed. The impugned orders in both the civil revision petitions are set aside and the trial Court is directed to reopen the suit to enable the 7th defendant to adduce evidence in relation to his right and title over the plaint schedule property as per the 18 additional issues framed on 11.09.2006 in the said suit. Further, the trial Court is directed to dispose of the suit in O.S No.330 of 1998, as expeditiously, as possible, preferably, within a period of four (04) months from the date of receipt of a copy of this order.
35. There shall be no order as to costs.
36. As a sequel, all the pending miscellaneous applications shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 04-11-2023
Gvl
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HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.574 of 2018, CIVIL REVISION PETITION Nos.7512 and 7258 of 2018 Date : 04.11.2023 Gvl