IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No. 135 of 2018 (INJ) Between:
1. SRI RAMAIAH SON OF LATE BASAVAIAH AGED ABOUT 64 YEARS.
2. SRI ANANDA SON OF SRI RAMAIAH AGED ABOUT 36 YEARS ALL ARE RESIDING AT TALEKERE VILLAGE KASABA HOBLI, TURUVEKERE TALUK – 572 221. TUMKUR DISTRICT.
... APPELLANTS (BY SRI.B.S. JEEVAN KUMAR., ADVOCATE) And:
SRI RANGANNA SINCE DECEASED REPRESENTED BY LR 1. SRI MANJUNATHA, SON OF RANGANNA AGED ABOUT 45 YEARS RESIDING AT TALEKERE VILLAGE KASABA HOBLI, TURUVEKERE TALUK – 572 221. TUMKUR DISTRICT.
2. SRI MAHALINGAIAH SON OF SRI RAMAIAH AGED ABOUT 39 YEARS TALEKERE VILLAGE KASABA HOBLI, TURUVEKERE TALUK – 572 221. TUMKUR DISTRICT.
... RESPONDENTS (BY SRI M. MADHAVACHAR, ADVOCATE FOR R-1; NOTICE TO R-2 SERVED AND UNREPRESENTED) THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.01.2018 PASSED IN R.A. NO. 49/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., TURUVEKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 16.04.2016 PASSED IN OS.NO. 51/2013 ON THE FILE OF CIVIL JUDGE AND JMFC., TURUVEKERE.
THIS MISCELLANEOUS SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the parties, and perused the appeal papers and the impugned judgement.
2. This appeal is filed calling in question the judgement and decree dated 30.01.2018 in RA No.49/2016 on the file of the Senior Civil Judge and JM FC, Turuvekere (for short, ‘the Appellate Court’). This first appeal is filed impugning the judgement and decree dated 16.04.2016 in OS No.51/2013 on the file of the Civil Judge and JMFC, Turuvekere (for short, ‘the Trial Court’). The Trial Court by its impugned judgement and decree dated 16.04.2016 dismissed the suit in OS No.51/2013, a suit for permanent injunction filed by the respondent No. 1, and the first appeal filed by the respondent No.1 in RA No. 49/2016 is allowed in part by the Appellate Court setting aside the judgement and decree of the Trial Court remanding the suit for re-adjudication on merits.
3. The respondent No. 1 – the plaintiff has filed the suit in OS No.51/2013 for permanent injunction against the appellants and respondent No. 2 asserting that he is the absolute owner and in possession of the land in survey No.183/9 (measuring 23 guntas) of Talakere Village, Kasaba Hobli, Turuvekere (for short, ‘the suit schedule land’). The respondent No. 1 has further asserted that he is granted absolute right to the suit schedule land on 6.11.1990. The revenue record for the suit schedule land is mutated in his favour. On the other hand, the appellants and the respondent No. 2-the defendant have contested the suit asserting that they had purchased the suit schedule land from the respondent No. 1 under the Sale Deed dated 1.8.1977 and they are in actual possession thereof. The respondent No.1 examined his power of attorney as PW.1 and three others as PW.2, PW.3 and PW.4. The appellants examined the respondent No.3 as DW.1 and three others as DW.2, DW 3 and DW 4. The respondent No.1 marked the Grant Certificate dated 6.11.1990 and certain other revenue records as Exhibits from his side, and the appellants and respondent No. 2 marked the Sale Deed dated 1.8.1977 and certain other records as Exhibits on their behalf.
4. The Trial Court on appreciation of the evidence has concluded that the respondent No. 1 is unable to prove his possession of the suit schedule land and therefore, dismissed the suit by its judgement and decree dated 16.04.2016. The respondent No. 1 being aggrieved by the trial Court’s judgement, carried the same in appeal in RA No.49/2016. In support of the appeal, the respondent No. 1 filed an application under Order XLI Rule 27 of the Code of Civil Procedure (for short, ‘the CPC’) seeking leave to produce RTCs as additional documents.
5. The Appellate Court has allowed the application filed by the respondent No.1 under Order XLI Rule 27 of the CPC reasoning that the RTCs would be necessary and important documents for adjudication of the dispute between the parties, and if the respondent No.1 is not permitted to produce the RTCs as additional documents, the respondent No. 1 would be put to irreparable loss. The appellate Court has also reasoned that if the respondent No. 1 is permitted to produce RTCs as additional evidence, the appellants should be given the opportunity to cross- examine the witness/witnesses who could be examined in support of such RTCs. The appellate Court, allowed the application filed by the respondent No.1 under Order XLI Rule 27 of CPC permitting him to produce RTCs as additional evidence, and set-aside the Trial Court’s judgement and remanded the matter for reconsideration on merits with opportunities to both the parties as aforesaid with the caveat that no opinions expressed on the merits of the case.
6. The substantial question of law that arises for consideration in this appeal is:
“Whether the appellate Court is justified in remanding suit to the Trial Court for re- adjudication solely on the ground that the respondent No. 1 is permitted to produce certain additional documents under the provisions of Order XLI to 27 of CPC without examining why it should not have had recourse to the provisions of Order XLI Rule 28 and 29 of CPC.”
The learned counsel for the parties have been heard on this question, and with their consent the appeal is taken for final disposal.
7. The Hon’ble Supreme Court in Syeda Rahimunnisa v. Malana Bi1has declared that to remand an appeal, it is necessary for the appellant to raise such plea and then make out a case for remand on facts. It is obligatory upon the appellant to bring the case under any of the provisions before claiming a remand. The appellate courts are required to record reasons as to why it has taken recourse to any one of the Rules of Order XLI of CPC for remanding the case to the trial Court. Further, in the absence of any ground taken by the appellant for remand and in the absence of a finding as to why a remand is justified, a remand order cannot be sustained in law. This 1(2016) 10 SCC page 315 Court in Shanthaveerappa vs. K N Janardhanachari2 has concluded that, An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavour 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 or no complete or effectual adjudication and the party complaining has suffered material prejudice on that account. Remand is not meant to 2ILR 2007 Kar 1127 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 Appellant Court cannot proceed under this rule and remand the case for a fresh enquiry on the ground that a finding is necessary on a point not dealt with in the judgement or that the enquiry has been inadequate. A remand for the purposes of producing 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 appellant Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice.
8. The Appellate Court has remanded the suit for re-adjudication by the Trial Court solely on the ground that the respondent No. 1 is permitted to produce additional evidence and therefore, the appellants will have to be permitted an opportunity to cross-examine witnesses examined by the respondent No. 1 in support of such additional documents. The Appellant Court’s judgement, when tested against the parameters enunciated as necessary to justify an order of remand, does not satisfy the requirements. The appellate Court has not even examined why it could not have recorded evidence itself, or framed specific points for consideration and call upon the Trial Court to record evidence/finding on such specific points as contemplated under Order XLI Rule 28 and 29 of CPC. The appellate Court’s judgement therefore cannot be sustained in law. As such, the substantial question formulated for consideration is answered in favour of the appellants and consequentially, the following ORDER a. The appeal is allowed in part, the judgement and decree in RA No. 49/2016 on the file of the Senior Civil Judge and JMFC, Turuvekere is set aside, and the appeal is restored for consideration in the light of the observations made by this Court in Shanthaveerappa vs. K N Janardhanachari (supra).
b. The parties shall appear before the Senior Civil Judge and JMFC, Turuvekere, without further notice of the first hearing on 18.11.2019. No costs.
Sd/- Judge KPS