THE HON'BLE MS JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.1407 of 2021
ORDER :
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the orders dated 26.02.2020 dismissing I.A.No.31 of 2020 in O.S.No.20 of 2014 on the file of the Court of Principal Junior Civil Judge, Parvatipuram filed under Order 18 Rule 17 CPC to recall PWs 1 and 2 for further cross examination by the defendants no.1 and 4.
2. The plaintiffs/respondents no.1 to 5 herein filed suit for declaration that the plaintiffs have title to the plaint schedule property and for delivery of its vacant possession to the plaintiffs. The suit was decreed on 13.12.2016. The aggrieved defendants no.1 and 4 preferred appeal in A.S.No.13 of 2017 on the file of the court of II Additional District Judge at Parvatipuram. After hearing the contesting parties, viz., the appellants and respondents no.1 to 5 (R-6 died and claim against R-7 to R-11 was not pressed), the appellate court allowed the appeal by setting aside the impugned decree and judgment and remanded back the matter to the trial Court with a direction to dispose of the matter within six months from the date of receipt of copy of the judgment and decree, by receiving the evidence of appellants/defendants and documents sought to be filed before the appellate court, and give opportunity to the other side to cross examine the defendant and her witnesses, uninfluenced by the findings of the appellate court.
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3. On remand, the defendants no.1 and 4 filed I.A.No.31 of 2020 under Order 18 Rule 17 CPC to recall the plaintiffs witnesses examined as PWs 1 and 2 for further cross examination by the defendants no.1 and 4 on the ground that the counsel for them on record previously before the trial Court did not defend their interest properly for reasons best known to him and without taking suitable pleas in their written statement and without properly cross examining the plaintiffs witnesses and without adducing the evidence of these defendants both oral and documentary; and the counsel allowed the suit to be decreed, inspite of right, title and interest of these defendants over the suit schedule property and strong case in their favour to succeed in their suit. Since these grounds were raised in the appeal, the decree and judgment passed by the trial Court were set aside by the appellate court and the matter was remanded for fresh disposal. Under these circumstances, it is necessary to further cross examine PWs 1 and 2. Hence, this application was filed.
4. In the trial court R-1 to R-5 refused to take notice and the other respondents did not appear. Therefore, the trial Court heard the arguments of the petitioners and dismissed the petition observing that the scope of the remand is just limited to the extent of receiving the evidence of the petitioners and documents sought to be filed before the appellate court and giving opportunity to the other side (plaintiffs) to cross examine the defendant and her witnesses. 3
BSB,J C.R.P.No.1407 of 2021 Therefore, the trial Court was of the view that the relief sought by the petitioners is beyond the directions of the appellate Court while remanding the matter to the trial Court for fresh disposal.
5. Having aggrieved by the said order, this petition is filed contending that the trial Court has not properly understood the scope of order passed by the court since the very contention of the petitioners is that their previous counsel did not properly represented their interest either in cross examining the plaintiffs' witnesses or leading the evidence of the defendants and therefore, the observation of the trial Court that the relief in the petition is beyond the scope of remand directions is not proper.
6. Now before this Court R-1 to R-5/plaintiffs are appearing through Sri Taddi Nageswara Rao, learned counsel.
7. Ms Swathi Guda, learned counsel for the petitioners/D-1 to D-4 submitted that the very ground raised before the appellate court is that the interest of D-1 and D-2 was not properly attended by the counsel in filing the written statement or conducting the trial which includes both cross examining the plaintiffs witnesses and also in leading the evidence of these defendants and it is only after considering the case of these defendants in appeal, the matter was remanded to the trial Court by setting aside the decree and judgment and directing the trial Court to dispose of the suit afresh. Therefore, 4 BSB,J C.R.P.No.1407 of 2021 in that context, the direction of the appellate Court must be understood and the right of these defendants to plead evidence should not be restricted only to examine witnesses and file documents of these defendants alone, but must be understood to mean the right of these defendants to further cross examine the witnesses of the plaintiffs who are already examined or else the very purpose of remanding the matter would be defeated, since the grievance of these defendants is not that they were not given due opportunity to lead their own oral and documentary evidence, but also for not properly cross examining the plaintiffs witnesses.
8. Learned counsel for the respondents/plaintiffs submitted that the revision petitioners have not challenged finding of the appellate Court directing to dispose of the matter within six months by receiving evidence of petitioners and documents sought to be filed before the Appellate Court and giving to other side opportunity to cross-examine the defendant and her witness and thus nothing more can be sought. He further submitted that the trial court is of considered view that the relief sought by the petitioner is beyond the directions given by the appellate Court.
9. Learned counsel for the respondents reiterated that the relief sought by the petitioners is beyond the scope of the remand direction. He further relied on Order 41 Rule 23 of CPC to contend that the appellate Court can direct specifically what to do, while 5 BSB,J C.R.P.No.1407 of 2021 remanding the matter and if at all the petitioner is aggrieved by the direction of the appellate Court, they ought to have challenged the direction before higher forum, but now they cannot seek any relief beyond the direction.
10. Learned counsel for the petitioners says that the present case does not fall under order 41 Rule 23 CPC, since the remand is not on preliminary issue and she further stated that her case falls under Order 41 Rule 23A CPC and it is a scope either to reverse the decree or remand the suit for retrial on the contention raised in the appeal. Though the authority of appellate Court under Order 41 Rule 23 or Rule 23A CPC is expressly stated, but it does not expressly or impliedly curtail the inherent authority of the appellate Court. The petitioners did not challenge the direction of the appellate Court, since they are not aggrieved by the order as it has accepted their contention that their interest was not duly represented by the counsel.
11. Order 41 Rule 23 CPC:
"Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a 6 BSB,J C.R.P.No.1407 of 2021 copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re- admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand".
Order 41 Rule 23A CPC :
"Where the Court from whose decree a appeal is preferred has disposed of the case, otherwise then on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate Court shall have the same powers as it has in Rule 23".
12. There is no dispute about the fact that the appellate Court accepted to set aside the whole decree and judgment and remanded for fresh disposal of the case, however giving liberty to the appellants to lead evidence. When once whole decree and judgment were set aside, has to take a decision afresh basing on the evidence let in by both parties. Of course, the appellate Court has given a direction to the trial Court to permit the appellants to lead their evidence and on such examination of the witnesses permitting the plaintiffs to cross- examine the witnesses of these defendants.
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13. When the purpose of remand is by accepting the contention of the appellants, as rightly contended by the revision petitioners, the trial Court need not restrict itself to the oral and documentary evidence of the defendants' witnesses, permitting the defendants to further cross-examine the plaintiff witnesses was also be part of their evidence in general sense. Normally a witness is referred by the nomenclature of the party on whose behalf he is examined, such as, plaintiff's witness, defendant's witness, Court witness. But, when the term evidence is taken in its generic sense, it is inclusive of evidence of all parties, their witnesses, and either in the form of oral or documentary or even material which comes within the definition of 'document'.
14. What the appellate Court directed is to take the evidence of the defendants since their contention is that they were not duly represented. The appellate Court has not restricted the inherent power of the trial Court to take whatever further evidence that is required. Just because there is a direction in the appellate Court's decree and judgment, the trial Court felt that it is bound by the parameters stated in the direction. Those directions specify permission to the defendants to lead their evidence, but it is not a restriction not to allow them to cross-examine the plaintiffs' witnesses, if there is necessity to permit them to do so. Thus, even otherwise, when the suit is reopened the inherent power of the trial 8 BSB,J C.R.P.No.1407 of 2021 Court to allow a party to lead further evidence, if necessary is not closed.
15. As such, this Court is of the view that the trial Court having felt bound by the expressly stated direction, did not exercise its jurisdiction in a required perspective to meet the ends of justice. As such, the impugned order is liable to be set aside, however subject to certain condition for the inconvenience caused to the other side, by directing the revision petitioners to pay costs of Rs.3000/- to the respondents/plaintiffs No.1 to 5 on or before 04.01.2023.
16. In the result, the revision petition is allowed by setting aside the order dated 26-02-2020 in I.A.No.31 of 2020 in O.S.No.20 of 2014 on the file of the Court of Prl. Junior Civil Judge, Parvathipuram and allowing I.A.No.31 of 2020 subject to the condition to pay costs of Rs.3000/- to the respondents/plaintiffs No.1 to 5 on or before 04.01.2023, failing which the petition stands dismissed.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_______________________ JUSTICE B.S.BHANUMATHI Date : 22-12-2022 PNV/SAB Note : C.C. by 26-12-2022 B/o PNV/SAB