Chennamma and Others Vs. Sheenappa Gowda - Court Judgment

SooperKanoon Citationsooperkanoon.com/1182718
CourtKarnataka High Court
Decided OnJul-29-2016
Case NumberMiscellaneous Second Appeal No. 74 of 2015 (RO)
JudgeA.N. Venugopala Gowda
AppellantChennamma and Others
RespondentSheenappa Gowda
Excerpt:
(prayer: this msa is filed under order 43 rule 1(u) of cpc, against the judgment and decree dated 28.04.2015 passed in r.a.nos.28/2010 and 29/2010 on the file of the v addl. district and sessions judge, d.k., mangalore, sitting at puttur, d.k., allowing the appeal and setting aside the judgment and decree dated 13.11.2009 passed in o.s.no.41/1998 on the file of the addl. civil judge (sr. dn.) and jmfc., puttur, d.k., remanding back the matter to the trial court to dispose of the suit afresh in accordance with law.) 1. the respondent plaintiff instituted o.s.no.41/1998 in the court of addl. civil judge (sr. dn.), puttur, d.k. to pass decree of partition and separate possession of his share in the plaint b and c schedule properties and for award of mesne profits. defendant no.4 filed written statement. defendant nos.1 to 3 filed memo and adopted the written statement filed by defendant no.4. based on the pleadings 6 issues were raised. during trial, oral and documentary evidence was placed on record of the suit by both sides. by a judgment dated 13.11.2009 the suit was decreed in part and the plaintiff was held entitled to partition and separate possession of half share in the suit b schedule properties. 2. feeling aggrieved to the extent of non grant of relief sought in respect of suit c schedule properties, the plaintiff filed r.a.no.28/2010. the defendants, assailing the aforesaid judgment and decree of the trial court, filed r.a.no.29/2010 in the district court, d.k., mangalore, sitting at puttur. the appellate judge raised four points for consideration and by a judgment dated 28.04.2015 allowed both appeals and remanded the case to the trial court by raising an additional issue whether plaintiff proves that their mother kunhakke died intestate leaving behind him and the defendants, to inherit suit c schedule properties? . trial court was directed to grant opportunity to both parties to adduce evidence in respect of the additional issue, record findings afresh on all the issues and decide the suit afresh in accordance with law. 3. the defendants feeling aggrieved by the said judgment and decree filed this appeal under order xliii rule 1(u) of cpc. 4. sri g. balakrishna shastry, learned advocate, contended that the appellate court has erred in remanding the case to trial court without consideration of the findings entered by the trial court on issue nos.2 and 3. learned advocate submitted that issue nos.2 and 3 raised by the trial court being also in respect of the c schedule properties, lower appellate court has committed error in raising the additional issue. learned counsel contended that both parties having adduced evidence, the appeals ought to have been decided and the judgment of remand passed being highly erroneous is liable to be set aside. 5. sri m.j.alva, learned advocate, on the other hand made submission in support of the impugned judgment and sought dismissal of the appeal. 6. perused the record. point for consideration is whether the lower appellate court is justified in remanding the case to the trial court and the impugned judgment is sustainable? 7. reasons assigned for remand of the case can be found at para 23 of the impugned judgment. according to the lower appellate court judge, the judgment passed by the trial court is silent about the c schedule properties and hence, it is unable to decide the appeal on merit. the lower appellate court has held that it cannot decide the appeal in the absence of any finding in respect of suit c schedule properties and on that score it has held that the decision of the trial court is nothing but half baked food . 8. it is obvious that the lower appellate court has not perused the record of the suit judiciously. issue no.3 raised by the trial court is with regard to the entitlement of the plaintiff for partition and separate possession of his share in plaint b and c schedule properties. the finding of the lower appellate court in para 9 of its judgment that in respect of c schedule properties the lower court has not whispered anything is incorrect, as in para no.36, while recording the finding on issue no.3, trial court having noticed ex.d5 has held that plaintiff or defendant nos.1 to 3 have no right or interest over the suit schedule c properties and has concluded that the plaintiff is entitled to partition and separate possession only in b schedule properties, but not in c schedule properties . the said finding and the non grant of share in c schedule properties and also the mesne profits has seen questioned by the plaintiff by filing r.a.no.28/2010. thus, the lack of application of judicial mind and the casual approach to the case by the first appellate court is apparent. 9. it is trite that the appellate court s power of remand ought not to be exercised lightly when there is sufficient evidence to decide the case. lower appellate court appears to have passed the impugned judgment by keeping in view the provision under order xli, rule 23 or 23a of cpc, which have no application to the case, as the suit was not decided on any preliminary issue. it is obvious that the lower appellate court has not kept in view the provisions as per s.107 and order xli rules 24 and 25 of cpc. plaintiff being aggrieved by non grant of relief in respect of c schedule properties has filed r.a.no.28/2010 and the defendants being aggrieved by the decree passed by the trial court have filed r.a.no.29/2010. neither of the parties having stated that sufficient evidence is not available to decide the appeal and lower appellate court also having not found any dearth of evidence to decide the appeals has passed the impugned judgment, without keeping in view rules 24 to 31 of order xli cpc. it ought to have considered whatever evidence was on record for the purpose of deciding the appeals and either confirm or modify or reverse the judgment and decree of the trial court i.e., after re-appreciation of the evidence. the course which has been adopted by the court below is wholly erroneous and contrary to the well settled principles of law. it is not a healthy practice to remand the case to the trial court, unless it is absolutely necessary to do so, as the remand makes the parties to again wait for the final decision of the case for further period and there might be an appeal again by one of the parties. 10. in p.purushottam readdy 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 of 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 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 it 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 clause 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 nanvati (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 exercise the power of remand de hors the 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 re-writing 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 of 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) 11. in uma vs. n.v. rajachari, ilr 2010 kar 3078, by considering the provision under order xli and rules 23 to 25 of 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 case 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 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 issue raised and the appeal should be decided. the lower appellate court being headed by the senior and experienced judicial officer should keep in view the powers of appellate court under s.107 of cpc and the guidelines provided as per order xli, rules 24 to 31 of cpc and decide the appeal(s). 13. the court below, instead of considering the evidence brought on record and deciding the controversy between the parties finally, has passed the judgment of remand which is wholly arbitrary. 14. the law laid down in the case of m.h. mahabaleshwar vs. joint registrar of co-operative societies, bangalore, ilr 2014 kar 1937, squarely applies. the impugned judgment being opposed to the record of suit and the appeals filed by both parties to the suit, suffer from perversity. there is failure to exercise the jurisdiction, on account of non-application of judicial mind and there is abdication of duty. in view of the above, the appeal is allowed and the impugned judgment and decree is set aside. r.a. nos.28 and 29 of 2010 is restored to the file of the addl. dist. and sessions court, dakshina kannada, sitting at puttur. the parties are directed to appear before the lower appellate court on 20.08.2016 and receive further orders. the appeals be decided with expedition and before 17.12.2016 by keeping in view the observations made supra. no costs.
Judgment:

(Prayer: This MSA is filed under Order 43 Rule 1(u) of CPC, against the Judgment and Decree dated 28.04.2015 passed in R.A.Nos.28/2010 and 29/2010 on the file of the V Addl. District and Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K., allowing the appeal and setting aside the Judgment and Decree dated 13.11.2009 passed in O.S.No.41/1998 on the file of the Addl. Civil Judge (Sr. Dn.) and JMFC., Puttur, D.K., remanding back the matter to the Trial Court to dispose of the suit afresh in accordance with law.)

1. The respondent plaintiff instituted O.S.No.41/1998 in the Court of Addl. Civil Judge (Sr. Dn.), Puttur, D.K. to pass decree of partition and separate possession of his share in the plaint B and C schedule properties and for award of mesne profits. Defendant No.4 filed written statement. Defendant Nos.1 to 3 filed memo and adopted the written statement filed by defendant No.4. Based on the pleadings 6 issues were raised. During trial, oral and documentary evidence was placed on record of the suit by both sides. By a Judgment dated 13.11.2009 the suit was decreed in part and the plaintiff was held entitled to partition and separate possession of half share in the suit B schedule properties.

2. Feeling aggrieved to the extent of non grant of relief sought in respect of suit C schedule properties, the plaintiff filed R.A.No.28/2010. The defendants, assailing the aforesaid Judgment and Decree of the Trial Court, filed R.A.No.29/2010 in the District Court, D.K., Mangalore, Sitting at Puttur. The Appellate Judge raised four points for consideration and by a Judgment dated 28.04.2015 allowed both appeals and remanded the case to the Trial Court by raising an additional issue whether plaintiff proves that their mother Kunhakke died intestate leaving behind him and the defendants, to inherit suit C schedule properties? . Trial Court was directed to grant opportunity to both parties to adduce evidence in respect of the additional issue, record findings afresh on all the issues and decide the suit afresh in accordance with law.

3. The defendants feeling aggrieved by the said judgment and decree filed this appeal under Order XLIII Rule 1(u) of CPC.

4. Sri G. Balakrishna Shastry, learned advocate, contended that the Appellate Court has erred in remanding the case to Trial Court without consideration of the findings entered by the Trial Court on issue Nos.2 and 3. Learned advocate submitted that issue Nos.2 and 3 raised by the Trial Court being also in respect of the C schedule properties, lower Appellate Court has committed error in raising the additional issue. Learned counsel contended that both parties having adduced evidence, the appeals ought to have been decided and the Judgment of remand passed being highly erroneous is liable to be set aside.

5. Sri M.J.Alva, learned advocate, on the other hand made submission in support of the impugned Judgment and sought dismissal of the appeal.

6. Perused the record. Point for consideration is whether the lower Appellate Court is justified in remanding the case to the Trial Court and the impugned Judgment is sustainable?

7. Reasons assigned for remand of the case can be found at para 23 of the impugned Judgment. According to the lower Appellate Court Judge, the Judgment passed by the Trial Court is silent about the C schedule properties and hence, it is unable to decide the appeal on merit. The lower Appellate Court has held that it cannot decide the appeal in the absence of any finding in respect of suit C schedule properties and on that score it has held that the decision of the Trial Court is nothing but half baked food .

8. It is obvious that the lower Appellate Court has not perused the record of the suit judiciously. Issue No.3 raised by the Trial Court is with regard to the entitlement of the plaintiff for partition and separate possession of his share in plaint B and C schedule properties. The finding of the lower Appellate Court in para 9 of its Judgment that in respect of C schedule properties the lower Court has not whispered anything is incorrect, as in para No.36, while recording the finding on issue No.3, Trial Court having noticed Ex.D5 has held that plaintiff or defendant Nos.1 to 3 have no right or interest over the suit schedule C properties and has concluded that the plaintiff is entitled to partition and separate possession only in B schedule properties, but not in C schedule properties . The said finding and the non grant of share in C schedule properties and also the mesne profits has seen questioned by the plaintiff by filing R.A.No.28/2010. Thus, the lack of application of judicial mind and the casual approach to the case by the First Appellate Court is apparent.

9. It is trite that the Appellate Court s power of remand ought not to be exercised lightly when there is sufficient evidence to decide the case. Lower Appellate Court appears to have passed the impugned Judgment by keeping in view the provision under Order XLI, Rule 23 or 23A of CPC, which have no application to the case, as the suit was not decided on any preliminary issue. It is obvious that the lower Appellate Court has not kept in view the provisions as per S.107 and Order XLI Rules 24 and 25 of CPC. Plaintiff being aggrieved by non grant of relief in respect of C schedule properties has filed R.A.No.28/2010 and the defendants being aggrieved by the decree passed by the Trial Court have filed R.A.No.29/2010. Neither of the parties having stated that sufficient evidence is not available to decide the appeal and lower Appellate Court also having not found any dearth of evidence to decide the appeals has passed the impugned Judgment, without keeping in view Rules 24 to 31 of Order XLI CPC. It ought to have considered whatever evidence was on record for the purpose of deciding the appeals and either confirm or modify or reverse the Judgment and Decree of the Trial Court i.e., after re-appreciation of the evidence. The course which has been adopted by the Court below is wholly erroneous and contrary to the well settled principles of law. It is not a healthy practice to remand the case to the Trial Court, unless it is absolutely necessary to do so, as the remand makes the parties to again wait for the final decision of the case for further period and there might be an appeal again by one of the parties.

10. In P.PURUSHOTTAM READDY 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 of 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 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 it 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 clause 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 Nanvati (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 exercise the power of remand de hors the 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 re-writing 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 of 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)

11. In UMA Vs. N.V. RAJACHARI, ILR 2010 KAR 3078, by considering the provision under Order XLI and Rules 23 to 25 of 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 case 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 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 issue raised and the appeal should be decided. The lower Appellate Court being headed by the Senior and experienced Judicial Officer should keep in view the powers of Appellate Court under S.107 of CPC and the guidelines provided as per Order XLI, Rules 24 to 31 of CPC and decide the appeal(s).

13. The Court below, instead of considering the evidence brought on record and deciding the controversy between the parties finally, has passed the Judgment of remand which is wholly arbitrary.

14. The law laid down in the case of M.H. MAHABALESHWAR Vs. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, BANGALORE, ILR 2014 KAR 1937, squarely applies. The impugned Judgment being opposed to the record of suit and the appeals filed by both parties to the suit, suffer from perversity. There is failure to exercise the jurisdiction, on account of non-application of Judicial mind and there is abdication of duty.

In view of the above, the appeal is allowed and the impugned Judgment and decree is set aside. R.A. Nos.28 and 29 of 2010 is restored to the file of the Addl. Dist. And Sessions Court, Dakshina Kannada, Sitting at Puttur.

The parties are directed to appear before the lower Appellate Court on 20.08.2016 and receive further orders. The appeals be decided with expedition and before 17.12.2016 by keeping in view the observations made supra.

No costs.