THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
IA Nos.1, 2 & 3 of 2021 and 1 & 2 of 2022
in/and
CCCA No.69 of 2012
COMMON ORDER:
The unsuccessful defendant has preferred this appeal
assailing the judgment and decree dated 23.04.2012 in OS
No.157 of 2009 on the file of the learned XIII Additional
Chief Judge (Fast Track Court), City Civil Court,
Hyderabad.
2. The original suit in OS No.157 of 2009 was filed
by the plaintiff for specific performance of contract based
on the agreement of sale dated 14.11.2008. The trial Court
after full length trial has decreed the suit of the plaintiff
holding that the plaintiff is entitled for specific performance
of agreement of sale dated 14.11.2008. The defendant was
directed to execute the registered sale deed in respect of
suit schedule property on receipt of the balance sale
consideration within three months from the date of
judgment, holding that failing which the plaintiff is entitled
for obtaining the sale deed by due process of law.
Page 2 of 12
3. Feeling aggrieved by the said judgment and
decree, the defendant has preferred this appeal. During the
pendency of the appeal suit, the son of the appellant/
defendant has filed IA No.1 of 2021 under Order-32, Rule 4
read with Section 151 of the Civil Procedure Code, 1908
(for short 'C.P.C.') to permit him to act as next friend of the
appellant, who is incapacitated to prosecute the appeal due
to her unsound state of mind and to pass any such other
orders. Along with IA No.1 of 2021, he has also filed IA
No.2 of 2022 to receive certain medical record of her
mother in IA No.1 of 2021 for better appreciation of the
issue involved in the said IA.
4. The appellant has filed IA No.2 of 2021 for
temporary injunction restraining the respondent/plaintiff
from dispossessing the appellant and their family members from the suit schedule property. IA No.3 of 2021 is filed by the appellant/defendant to restrain the respondent/ plaintiff from creating any third party interest or executing any other document of alienation in respect of the suit schedule property. All the above interlocutory applications Page 3 of 12 filed in IA Nos.1 to 3 of 2021, IA No.2 of 2022 filed by or on behalf of appellant/defendant are resisted by the respondent/plaintiff.
5. Whereas, IA No.1 of 2022 is filed by the respondent/ plaintiff to close the appeal No.69 of 2012 as infructuous, since the appellant/defendant has executed a registered sale deed on 20.07.2021 in respect of the suit schedule property, pursuant to the judgment and decree on receipt of the balance sale consideration.
6. Heard the learned counsel on both sides. The submissions made on either side have received due consideration of this Court.
7. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit.
8. The plaintiff has filed the original suit for specific performance of agreement of sale dated 14.11.2008 and that suit was decreed directing the defendant to Page 4 of 12 execute the registered sale deed in respect of the suit schedule property on receipt of the balance sale consideration. However, it is the case of the defendant that during pendency of this appeal suit, the defendant executed the registered sale deed dated 20.07.2021, accordingly he has filed IA No.1 of 2022 under Section 151 of C.P.C. with a prayer to close the CCCA No.69 of 2012 as infructuous.
9. Be it stated that the appellant/defendant did not turn up, but her son has filed IA No.1 of 2021 to permit him to prosecute the matter as next friend of the appellant alleging that due to her old-age and symptoms of Alzheimer, she is incapacitated to prosecute this appeal and that she is of unsound mind. Along with IA No.1 of 2021, he has filed IA No.2 of 2022 to receive medical evidence to show that the appellant /defendant is suffering from unsound mind.
10. Similarly, during pendency of this appeal, the appellant/defendant has filed two applications IA Nos.2 Page 5 of 12 and 3 of 2021 for temporary injunction to restrain the plaintiff from dispossessing her from the suit schedule property and also to restrain the plaintiff from creating any third party interest in respect of the suit schedule property. But, according to the plaintiff, during pendency of this appeal suit filed in the year 2012, the defendant has executed the registered sale deed dated 20.07.2021 and that the appeal suit has become infructuous.
11. Be it stated that much before 20.07.2021 itself, the son of appellant/defendant has filed IA Nos.1, 2 & 3 of 2021 to permit him to act as next friend of the defendant, who is her mother and also for temporary injunction restraining the plaintiff from dispossessing the defendant and her family members from the suit schedule property and also to restrain the plaintiff from crating any third party interest or from executing any other document of the alienation in respect of the suit schedule property. It appears he has also filed Writ Petition No.27569 of 2021 seeking a direction to the Commissioner and the Inspector General of Registration and Stamps, Hyderabad, to initiate Page 6 of 12 necessary action in accordance with the procedure laid down under Section 82 of the Registration Act for impersonating the defendant fraudulently obtaining sale deed in respect of the suit schedule property as per the document No.5035 of 2021, dated 20.07.2021. Accordingly, a learned single Judge of this Court has directed the Commissioner and Inspector General of Stamps and Registration, Hyderabad, to consider the request/complaint of the petitioner dated 26.07.2021 and pass necessary orders thereon strictly in accordance with law within a period of eight weeks from the date of receipt of copy of this order.
12. The respondent also filed a copy of proceedings No.G/5220 of 2021 of the District Registrar, Hyderabad (South), dated 28.02.2022. As per the said proceedings, an enquiry was conducted on the complaint lodged by the writ petitioner in WP No.27569 of 2021. Thus, during pendency of the appeal suit, the appellant/defendant allegedly executed a registered sale deed dated 20.07.2021 and the very execution of sale is challenged by her son alleging that Page 7 of 12 she is suffering from Alzheimer and she is mentally unsound person and she does not know anything and filed W.P.No.27569 of 2021, obtained a direction. The District Registrar, Hyderabad (South) has held enquiry, pursuant to the directions in WP No.27569 of 2021. In the meanwhile, the son of the appellant/defendant has also filed IA No.1 of 2021 seeking a permission to act as a next friend of the appellant and also the appellant has filed IA Nos.2 and 3 of 2021 to restrain the respondent/plaintiff from dispossessing the appellant and also from creating any third party interest in respect of the suit schedule property. Thereafter, the respondent has filed IA No.1 of 2022 to close the appeal as infructuous.
13. In view of the peculiar facts of the case, checkered history of litigation, considering the subsequent developments after filing and during pendency of appeal suit, it is felt essential to receive copy of the disputed sale deed filed by the respondent/plaintiff along with IA No.1 of 2022 on to record. At the same time, it is also felt essential to receive the medical evidence filed by the son of the Page 8 of 12 appellant, vide IA No.2 of 2022 to ascertain whether the defendant has voluntarily executed the registered sale deed as stated above or she is incapacitated due to unsoundness of her mind.
14. There are three provisions in the Code of Civil Procedure, which deal with the power of the appellate Court to remand the case to the trial Court. These provisions are Order-41, Rules 23, 23 (A) and 25 of CPC. So far as Order-41 Rule-23 CPC is concerned, it enables the appellate Court to remand the case to the trial Court when the trial Court has disposed of upon the preliminary point. The appellate Court in such circumstances is empowered to direct the trial Court to decide all the issues on sufficient evidence which is available on record.
15. So far as Rule 23 (A) of Order 41 of CPC is concerned, it enables the appellate Court to remand the case to the trial Court when the trial Court has disposed of the suit on all aspects, but on reversal of the decree in detail, retrial is considered necessary by the appellate Page 9 of 12 Court. So far as Order-41 Rule-25 of CPC is concerned, it enables the appellate Court to frame or to try the issue if it finds that it is essential to the right decision of the suit and was not framed by the trial Court. The appellate Court in such cases may accordingly frame the issues and refer the same to the trial Court to take evidence and record the findings on such issues and return to the appellate Court for deciding the appeal. In such circumstances of the case, the appellate Court retains the appeal to itself.
16. Reverting back to the facts of the case on hand, the respondent/plaintiff has filed the sale deed along with IA No.1 of 2022 stating that during pendency of the appeal suit, the appellant/defendant has executed the sale deed and that the appeal suit has become infrcutuous. It is pertinent to state here that the son of the appellant/ defendant has filed the writ petition No.27569 of 2021 making certain wild allegations alleging that the appellant is suffering from loss of memory and she is not maintaining sound health, a direction was sought against the Commissioner and Inspector General of Registration and Page 10 of 12 Stamps, Hyderabad. Accordingly, such direction was issued, pursuant to such directions to the District Registrar, Hyderabad caused enquiry and submitted a report dated 28.02.2022. In addition to it, the son of the appellant has filed IA No.1 of 2021 with a prayer to permit him to pursue the appeal as next friend of the appellant and he relied on the medical record filed along with IA No.2 of 2022.
17. In such facts and circumstances of the case, it is felt essential to receive the medical record, orders of the District Registrar and the alleged sale deed executed by the appellant/defendant during pendency of the appeal. Therefore, it is felt essential to remand the matter under Order-41 Rule 25 of CPC with a direction to receive the sale deed dated 22.07.2021, medical record filed along with IA No.2 of 2022 and the copy of order in WP No.27569 of 2021 along with the proceedings of the District Registrar, Hyderabad (South), competent authority under Section 82 of the Registration Act, vide proceedings No.G/5220/2021, Page 11 of 12 dated 28.02.2022 and to record a finding on the following additional issue.
Additional Issue:
Whether the sale deed dated 22.07.2021 executed by the appellant/defendant is genuine or not?
The trial Court is directed to take/record all such additional oral and documentary evidence as may be required by giving reasonable opportunity to both the parties in the Original Suit and shall return the evidence together with its findings thereon and the reasons therefor within a period of six months from the date of receipt of copy of this order to this Court (appellate Court) for deciding the appeal.
18. With the above observations and findings, all these Interlocutory Applications i.e., I.A.Nos.1, 2 & 3 of 2021 and 1 & 2 of 2022 in CCCA No.69 of 2012 are disposed of with a liberty to file necessary applications, if any required before the trial Court and the learned Judge of the trial Court shall consider the same on its own merits Page 12 of 12 being uninfluenced by the orders of this Court. Accordingly, this appeal suit is remanded to the trial Court under Order-41 Rule 25 of C.P.C. for limited purpose of receiving the evidence, recording the findings on the above additional issue and to return the suit to the appellate Court within six months from the date of receipt of copy of this order for deciding the appeal. The parties shall appear before the trial Court i.e., learned XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad on 05.12.2022 for receiving the direction of the trial Court as to further proceedings in the suit as indicated above. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, interlocutory applications, if any pending in this appeal, shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J.
Date: 19.11.2022 Isn