Adina Nirmala, vs Regu Ramanamma
2022 Latest Caselaw 9807 AP

            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.

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,

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

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

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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

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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