IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 1108 of 2017 (PAR) Between:
H NOORULLA S/O. HASSAN SAB, AGED ABOUT 63 YEARS, RESIDING NEAR DIKSHA FLOOR MILL, VEDAVATHINAGAR, HIRIYUR TOWN 572143 (BY SRI R.SHASHIDHARA, ADVOCATE) And:
... APPELLANT 1. MOHAMMED MUSTAFA SON OF HAYATHSHAB, AGE 41 YEARS, MASAON, RESIDING AT HARISHCHANDRAGHAT, HIRIYUR TOWN – 572 143 2. MEHABOOBUNNISSA WIFE OF HAYATH SAB, AGE 65 YEARS, RESIDING AT HARISHCHANDRAGHAT, HIRIYUR TOWN – 572 143 3. SHEIK BUDEN SAB SON OF HAYATH SAB, AGE 45 YEARS, PAINTER, RESIDING AT GUDDADANERALAKERE, HOSADURGA TALUK – 577 527 4. BUDENBI WIFE OF BASHEER SAB, AGED ABOUT 65 YEARS, RESIDING AT HARISHCHANDRAGHAT, HIRIYUR TOWN - 572 143 5. UMERBANU WIFE OF SYED SADATHULLA, AGED ABOUT 55 YEARS, BEEDI WORKER, RESIDING AT BEHIND DURGAMMA TEMPLE, NEAR MUTTON MARKET, HIRIYUR TOWN – 572 143 ... RESPONDENTS (BY SRI SUNDARRAJ, ADVOCATE FOR R1 TO R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.01.2017 PASSED IN R.A NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HIRIYUR, DISMISSING THE APPEAL AND AFFIRMING THE JUDGMENT AND DECREE DATED 22.09.2012 PASSED IN O.S.NO.18/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., HIRIYUR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant and the learned counsel for the respondents on admission, perused the impugned judgment and decree.
2. This appeal is filed by the first defendant in O.S.No.18/2008 on the file of the Principal Civil Judge and JMFC., Hiriyur (for short, ‘the trial Court’). The respondent No.1 has filed the suit in O.S.No.18/2008 for partition of the agricultural land in Sy. No.23 of Yelakooranahally, Hiriyur taluk measuring 6 acres 23 guntas (for short, referred to as ‘the subject property’). The respondent No.1 contended that this property was owned by his grand father, Sri. Buden Sab, who was survived by his two sons, Sri Hasansab and Sri Ayathsab. He and the respondent No.3 are the children of Ayathsab. The appellant and the respondent Nos.4 and 5 are the children of Sri Hasansab. He and other members of the family have continued the possession of the subject property as tenants and therefore, the suit for partition. The other respondents though served, remained unrepresented and did not contest the suit. But the appellant filed written statement resisting the suit contending inter alia that Sri Ayathsab, his paternal uncle was a bachelor until his demise and is not survived by any spouse or children. The trial Court framed multiple Issues which required the respondent No.1 to prove the relationship, joint possession and the entitlement to seek partition of the subject property. The respondent No.1 examined himself as PW.1 and also the respondent No.4 as PW.2. The appellant examined himself as DW.1, but he did not offer himself for cross examination. The trial Court on appreciation of the documentary evidence, and taking note of the fact that the appellant had not offered himself for cross examination, decreed the suit granting 1/6th share to the respondent and other members of the family.
3. The appellant impugned the trial Court’s judgment in first appeal in R.A.No.15/2012 on the file of the Senior Civil Judge & JMFC., Hiriyur. The appellate Court by the impugned judgment has dismissed the appeal, and in the course of its impugned judgment, the appellate Court has refused the prayer for remand. In fact, the appellate Court has opined that there is no reason or scope for remand contemplated under Order XLI Rule 23(A) of CPC.
4. The substantial question of law that arises for consideration in this appeal is:
“Whether the appellate Court is justified in its conclusion that there is no reason or scope for remand as contemplated under Order XLI Rule 23(A) of CPC.”
5. Heard the learned counsel for the appellant and the learned counsel for the respondents on the substantial question of law framed, and the appeal is taken up for final disposal with the consent of the learned counsel.
6. It is undisputed that the appellant, who contested the right of the respondent No.1 to seek partition of the subject property denying his relationship with his paternal uncle, Sri Hasansab, did not offer himself for cross examination and that he did not participate in the proceedings before the trial Court after he examined himself as one of the witness because he was taken into custody by the jurisdictional police on a complaint filed by his daughter-in-law. The finding by the appellate Court that the suit was listed for the appellant’s evidence on 03.11.2011, and subsequently on five other dates, is examined in the light of the undisputed fact that the appellant was in custody during the relevant point of time. If thus examined, the appellant’s failure to participate in the proceedings would be sufficiently explained. It is settled that the Courts must not remand the proceedings under Order XLI Rule 23(A) of CPC as a matter of course and the Courts must examine whether the appellant has raised a ground for remand. The Courts must reason why remand should be made keeping in mind the restrictions on remand, including giving an opportunity to a party to fill up lacuna in his/her case. However, it would be indisputable that in the appropriate cases the Courts must examine the reasons urged. If the reasons are bona fide, and if there has been no adjudication of the dispute after complete trial with opportunity to both sides to lead evidence, the Courts could remand the case for re- adjudication by the trial Court. In the present case the appellant’s failure to participate in the proceedings before the trial, especially in the light of the undisputed facts, is not contrived. Further, the impugned judgments are not after complete trial. The appellate Court has not examined these circumstances in the light of the undisputed facts. As such, there is an error. The substantial question of law is answered accordingly. Therefore, the following order:-
a) The appeal is allowed in part.
b) The appellate Court judgment dated 17.01.2017 in R.A.No.15/2012 on the file of the Senior Civil Judge & JMFC., Hiriyur is set aside, and the judgment in O.S.No.18/2008 on the file of the Principal Civil Judge and JMFC., Hiriyur is also set aside restoring the suit to the board of the original Court for deciding the case on merits with opportunity to the appellant to tender himself for cross examination and, if justified, permitting the respondents to lead rebuttal evidence in accordance with law.
c) The parties shall appear before the original Court, without further notice of hearing, on 02.12.2019.
Sd/- Judge KPS