IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No.46 of 2019 Between:
SMT. KEMPAMMA SINCE DECEASED BY HER LRS 1. SRI.PUTTAGANGAIAH SON OF LATE SRI.HANUMANTHAIAH SINCE DECEASED BY HIS LRS.
1(a) SMT.YASHODA.T.P WIFE OF SRI.NATARAJU.T.J DAUGHTER OF LATE SRI.PUTTAGANGAIAH AGED ABOUT 36 YEARS, RESIDENT OF NO.93, "GOWRI SHANKARA NILAYA", IV CROSS, LAGGERE BRIDGE, RING ROAD, BENGALURU - 560 058.
1(b) SMT.DEEPIKA.T.P WIFE OF SRI.RAMU YADAV DAUGHTER OF LATE SRI.PUTTAGANGAIAH AGED ABOUT 28 YEARS, RESIDENT OF NO.44, III CROSS, VINAYAKA NAGAR, OLD GUDADAHALLI, BENGALURU - 560 058. (REPRESENTED BY HER GPA HOLDER SMT. YASHODA T P WIFE OF SRI. NATARAJU T.J DAUGHTER OF LATE SR. PUTTAGANGAIAH AGED ABOUT 36 YEARS RESIDENT OF NO. 93, “GOWRI SHANKARA NILAYA” IV CROSS, LAGGERE BRIDGE, RING ROAD BENGALURU – 560 058.
1(c). SMT.ASHIKA.T.P DAUGHTER OF LATE SRI.PUTTAGANGAIAH AGED ABOUT 25 YEARS, RESIDENT OF "GANESHA SADANA", IV MAIN ROAD, IV CROSS SADASHIVANAGAR, TUMKURU - 572 101.
(BY SRI M.V.HIREMATH, ADVOCATE) And:
... APPELLANTS 1. SRI. MASTHAIAH SON OF LATE SRI.CHIKKANNA AGED ABOUT 81 YEARS, RESIDENT OF KYATHSANDRA TUMKURU - 572 101 2. SMT.GANGAMMA DAUGHTER OF LATE SRI.HANUMANTHAIAH AGED ABOUT 60 YEARS, RESIDENT OF 6TH CROSS, KESARAMADU ROAD, KYATSANDRA, TUMKURU - 572 101.
3. SMT.VENKATAMMA WIFE OF LATE SRI.K.C.RAMANJENAYA @ THIMMAIAH, AGED ABOUT 73 YEARS, RESIDENT OF SONDEKOPPA VILLAGE, DASANAPURA HOBLI, TAVAREKERE POST, BENGALURU NORTH TALUK, BENGALURU - 562 162.
4. SMT.RUKMINI DAUGHTER OF LATE SRI.K.C. RAMANJENAYA @ THIMMAIAH WIFE OF SRI.KRISHNAPPA, AGED ABOUT 48 YEARS, RESIDENT OF SONDEKOPPA VILLAGE, DASANAPURA HOBLI, TAVAREKERE POST, BENGALURU NORTH TALUK, BENGALURU - 562 162.
5. SRI.MANJUNATHA SON OF LATE SRI.K.C.RAMANJENAYA @ THIMMAIAH AGED ABOUT 45 YEARS, RESIDENT OF SONDEKOPPA VILLAGE, DASANAPURA HOBLI, TAVAREKERE POST, BENGALURU NORTH TALUK, BENGALURU - 562 162.
6. SRI.PRAKASH SON OF LATE SRI. K.C.RAMANJENAYA @ THIMMAIAH AGED ABOUT 39 YEARS, RESIDENT OF SONDEKOPPA VILLAGE, DASANAPURA HOBLI, TAVAREKERE POST, BENGALURU NORTH TALUK, BENGALURU - 562 162.
7. SMT.KEMPAMMA @ KEMPAKKA WIFE OF LATE SRI.K.C.DODDAIAH AGED ABOUT 72 YEARS, RESIDENT OF BEH. N RUDURAIAH CHOULTRY, N.H.4, KYATHSANDRA, TUMKURU - 572 101.
8. SMT.D MAMATHA DAUGHTER OF LATE SRI. K.C.DODDAIAH WIFE OF SRI. H.C.RAMAIAH.P.C AGED ABOUT 51 YEARS, RESIDENT OF BEH. N RUDURAIAH CHOULTRY, N H 4, KYATHSANDRA, TUMKURU - 572 101.
9. SMT.KUSUMA DAUGHTER OF LATE SRI. K.C.DODDAIAH AGED ABOUT 49 YEARS, RESIDENT OF BEH.N RUDURAIAH CHOULTRY, N H 4, KYATHSANDRA, TUMKURU - 572 101.
10. SMT.NIRMALA DAUGHTER OF LATE SRI.K.C.DODDAIAH AGED ABOUT 47 YEARS, RESIDENT OF BEH.N RUDURAIAH CHOULTRY, N H 4, KYATHSANDRA, TUMKURU - 572 101.
11. SMT.NETHRAVATHI, DAUGHTER OF LATE SRI. K.C.DODDAIAH, AGED ABOUT 45 YEARS, RESIDENT OF BEH. N RUDURAIAH CHOULTRY, N H 4, KYATHSANDRA, TUMKURU – 572 101.
12. SRI. BHAKTHAVATHSALA SON OF LATE SRI. K.C. DODDAIAH AGED ABOUT 43 YEARS, RESIDENT OF BEH. N RUDURAIAH CHOULTRY, N H 4, KYATHSANDRA, TUMKURU - 572 101.
... RESPONDENTS (BY SRI V.B. SIDDARAMAIAH, ADVOCATE FOR R1;
SRI R. JAYAPRAKASH, ADVOCATE FOR R3 TO R12; R2 SERVED) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 13.03.2019 PASSED IN R.A.NO.312 OF 2006 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.04.2002 PASSED IN O.S.NO. 201 OF 1986 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, TUMAKUR, AND REMANDING THE MATTER TO THE TRIAL COURT FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. This appeal is filed impugning the judgment dated 13.03.2019 in R.A.No.312/2006 on the file of I Additional District and Sessions Judge, Tumakuru (for short, ‘appellate Court’) whereby, the appellate Court has set aside the judgment and decree dated 03.04.2002 in O.S.No.201/1986 on the file of Principal Civil Judge and JMFC., Tumakuru (for short, ‘trial Court’) remanding the suit for fresh disposal with opportunity to both the parties to lead further evidence. The trial Court is directed to dispose of the suit within six months from the date of receipt of the judgment.
3. The dispute between the appellants and the respondents is in respect of land bearing survey No.14/1 of Kyathsandra village, Urdigere hobli, Tumakuru measuring 1 acre 25 guntas. It is undisputed that Smt. Siddabyramma and Sri. Mastagaiah are the original owners of this land in Sy. No.14/1 and they transferred this land in favour of one Sri Borasettaiah under the sale deed dated 12.05.1929 (Ex.P2). This transferee, Sri Borasettaiah’s son, Sri Boraiah had two wives namely, Smt.Byramma and Smt.Kempamma, and he has transferred the land in Sy No.14/1 in favour of his second wife (the plaintiff) under the gift deed dated 11.04.1996 (Ex.P3) which is rectified later by a rectification deed (Ex.P4). The revenue records were updated in the name of the plaintiff, vide M.R.No.22:79-80. The plaintiff (now represented by his legal representatives – appellants) has continued in possession of the subject property as the absolute owner. The original owner-Sri Mastagaiah impugned the revenue entries M.R.22:79-80 in revenue proceedings before the Assistant Commissioner in R.R.T.(A)134/1988-89. Thereafter, the respondents, who claim under Mastagaiah, have filed suit in O.S.No.201/1986 for declaration and permanent injunction. The trial Court decreed the suit.
4. The respondents impugned the trial Court’s judgment in R.A.No.312/2006 and they also filed an application under Order XLI Rule 27 of CPC seeking leave of the appellate Court to produce additional document viz., the orders passed in R.R.T.(A)(T)No.134/88-89 on 06.08.2004, which is subsequent to the trial Court’s judgement. The appellate Court formulated two points for consideration which reads as follows:-
“1.Whether the appellant has made out sufficient grounds to allow I.A.No.7?
2. Whether the impugned judgement and decree of the trial Court requires interference?”
5. The learned counsel for the appellants submits that the appellate Court after an elaborate discussion on the law on leave to produce additional documents in an appeal with regard to the provisions under Order XLI Rule 27 of CPC, is of the opinion that the orders of the Assistant Commissioner on 06.08.2004 in R.R.T.(A)(T)No.134/88-89 would be a crucial circumstance that would be necessary for proper adjudication of the rights of the parties and the orders being subsequent to the trial Court’s judgment, could be received under the provisions of Order XLI Rule 27 of CPC. However, the appellate Court failed to notice the law, now settled, that on an application under Order XLI Rule 27 of CPC being allowed, the appellate Courts cannot mechanically set aside the judgement impugned and remand the matter for fresh consideration. The learned counsel for the appellants relies upon the decision of this Court in the case of Shanthaveerappa Vs.K.N.Janardhanachari reported in ILR 2007 KAR 1127. The impugned judgment suffers from a legal infirmity in as much as the appellate Court has mechanically set aside the impugned order without applying its mind as to why it should not have had recourse to one of the options under the provisions of Order XLI in adherence to Rules 28 and 29 of CPC thereof.
6. The learned counsel for the respondents, while submitting that the respondents are denying the appellants title to the subject matter certainly, does not join debate with the learned counsel for the appellants on the question that the appellate Court has not considered why it should not have itself either recorded evidence or formulated points and called upon the trial Court to record evidence as contemplated under the provisions of Order XLI Rules 28 and 29 of CPC after it had opined that the applications under Order XLII Rule 27 should be allowed.
7. This Court in the case of Shanthaveerappa Vs.
K.N.Janardhanachari (stated supra) has held that when additional evidence is tendered in appeal, the appellate Courts should act under Order XXVII Rules 28 and 29 of CPC and not remand the case, and the remand must be only in exceptional cases where there has been no either real trial or complete and effectual adjudication of the dispute. Further, remand should be made only if the finding of the trial Court is reversed, and when the appellate Court does not reverse the finding of the trial Court, the appellate Court should not remand the case for fresh enquiry. This Court has held as follows:-
“11. An appeal is a 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 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 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 endeavor 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 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.”
8. The appellate Court has not reversed any of the findings by the trial Court based on which the suit is decreed, and the impugned judgment of the appellate Court does not measure up to the requirement of law enunciated in the aforesaid decision. Therefore, it would be appropriate for this Court to set aside the impugned order and restore the appeal to the file of the appellate Court to decide on whether the evidence could be recorded by itself or whether it should formulate points for consideration and call upon the trial Court to record evidence in accordance with the provisions of Order XLI Rules 28 and 29 of CPC while observing that the appellate Court’s order insofar as allowing I.A. under Order XLI Rule 27 of CPC is not disturbed.
9. The appeal is thus partly allowed. The impugned judgement is set-aside, and the appeal in R.A.No.312/2016 on the file of the I Addl. District and Sessions Judge, Tumakuru, is restored for disposal in the light of the observations made herein.
Ordered accordingly.
The parties shall appear before the appellate Court without further notice of first hearing on 16.09.2019. No Costs.
Sd/- Judge KPS