Nandigam Suresh vs Nandigam Charumathi Devi Died
2022 Latest Caselaw 8299 AP

      HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL No.205 of 2022

JUDGMENT:

Plaintiff in the suit filed the above Civil Miscellaneous

Appeal under Order XLIII Rule 1 (u) of CPC, against the

judgment and decree dated 06.05.2022 in A.S.No.110 of 2013

on the file of I Additional District Judge, Eluru, whereby the first

appellate Court set aside the judgment and decree dated

29.11.2012 in O.S.No.832 of 2007 on the file of Principal Junior

Civil Judge, Eluru and remanded the matter to the trial Court.

2. Parties to this judgment are referred to as per their status

in the suit.

3. Plaintiff filed suit O.S.No.832 of 2007 seeking permanent

injunction in respect of plaint schedule property.

4. The averments, in brief, in the plaint are that the plaintiff

is brother's son of one Rayulu; that defendant is wife of said

Rayulu and they have no male issues and the plaintiff was

brought up by defendant and Rayulu from the age of 5 years;

that plaintiff looked after the affairs of defendant and Rayulu;

that out of love and affection Rayulu executed a registered Will

dated 01.05.2004 in a sound and disposing state of mind and

died on 26.12.2006; that under the said Will the executant

bequeathed the landed property and also plaint schedule

property, in which the plaintiff and his family are residing along

with defendant; that as per the Will dated 01.05.2004, plaintiff

has to take possession of property after life time of defendant;

that except the plaintiff, no others have right in the schedule

property; that defendant executed a registered sale deed dated

12.01.2007 alienating the schedule property to one Raparla

Saraswathi; that defendant had no right to alienate the plaint

schedule property or any part thereof; that registered sale deed

dated 12.01.2007 is not valid and binding; that the plaintiff got

filed suit O.S.No.330 of 2007 against the defendant and her

vendee for declaration and recovery of possession; that having

bore grudge, defendant is obstructing the plaintiff and his wife

for residing in the plaint schedule property; that plaint schedule

property consists of six rooms including verandah; that the

plaintiff has been residing in three rooms on Southern side and

in the two room and verandah on Northern side, defendant has

been residing and hence, filed the suit for injunction.

5. Defendant filed written statement and contended interalia

that her husband has no right to execute Will for whole of the

property, since he got one grandson Parvathaneni Bhaskara

Lakshmi Swaroop through his deceased first daughter Swarajya

Lakshmi; that 2nd daughter of Rayulu by name Dhonepudi

Ramadevi is also a coparcener and the plaint schedule property

is the ancestral property; that defendant is Class-I heir of

deceased Rayulu along with daughter; that sale deed dated

12.01.2007 executed by defendant in favour of R.Saraswathi in

respect of some landed property is valid and binding on the

plaintiff; that neither the plaintiff nor his wife are in the village

and eventually, prayed the Court to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed

the following issues:

(1) Whether the plaintiff is entitled for permanent injunction as prayed for?

(2) To what relief?

7. On behalf of plaintiff, the plaintiff examined himself as

P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-8 were

marked. On behalf of defendant, defendant examined herself

as D.W.1, however her evidence was eschewed and D.W.2

was examined. No documents were marked.

8. Trial Court on consideration or oral and documentary

evidence dismissed the suit by judgment and decree dated

29.11.2012. Aggrieved by the same, plaintiff filed appeal

A.S.No.110 of 2013 on the file of I Additional District Judge,

Eluru. Pending the appeal, sole respondent died and

respondents 2 and 3 were added as per orders in I.A.No.206

of 2019 dated 02.05.2019.

9. Lower appellate Court being final fact finding Court

framed the following points for consideration:

(1) Whether the appellant/plaintiff is entitled for permanent injunction as prayed for?

(2) Whether the judgment of the trial Court needs any interference?

10. Lower Appellate Court by judgment and decree dated

06.05.2022 set aside the judgment and decree dated

29.11.2012 in O.S.No.832 of 2007 and remanded the matter

to the trial Court by invoking Order 41 Rule 23(A) of CPC.

Lower appellate Court directed the parties to adduce further

to substantiate their case. Assailing the said judgment and

decree, the present Civil Miscellaneous Appeal is filed.

11. Heard Sri Sai Gangadhar Chamarthi, learned counsel

for the appellant and Sri Sreenivasa Rao Velivela, learned

counsel for the respondents.

12. Learned counsel for the appellant would submit that

lower appellate Court failed to follow the procedure

contemplated under Order 41 Rules 23 to 25 of CPC while

remanding the matter to the trial Court. He also would

submit that no points were framed by the lower appellate

Court while remanding the matter to the trial Court. He

would further submit that respondents 2 and 3 were added

as legal representatives of deceased 1st respondent and the

legal representatives are not allowed to raise new or

additional pleas and thus, prayed the Court to allow this

appeal.

13. Learned counsel for the respondents, on the other

hand, supported the judgment of the lower appellate Court.

14. In view of the pleadings and contentions, the following

substantial questions of law arise for consideration:

(1) Whether the remand made by the Lower Appellate Court is in consonance with Order 41 Rule 23 to 25?

(2) Whether the lower appellate Court framed necessary points, while remanding the matter to the trial Court?

15. Undisputed facts are that plaintiff is brother's son of

deceased Rayulu. Sole defendant is wife of Rayulu. The said

Rayulu died on 28.12.2006. Rayulu had two daughters

P.Swarajya Lakshmi and Donepudi Ramadevi, 2nd respondent

herein. Late Rayulu, as per the findings, executed Will dated

01.05.2004 reserving life interest in favour of wife and vested

remainder to the plaintiff. Rayulu's elder daughter

predeceased him by leaving her son. 2nd daughter and grand-

son were brought on record after death of sole respondent,

(sole defendant) in the appeal as respondents 2 and 3.

16. Scope of Appeal under Order 43 Rule 1(u) was dealt with

in Narayanan Vs. Kumaran and others1. The Hon'ble Apex

Court held that an appeal under Order 43 Rule 1(u) should

be heard only on the grounds enumerated in Section 100 of

CPC. Appellant in the appeal is not entitled to agitate

questions of fact. High Court shall confine itself to such and

conclusions which a bearing on the order of remand. It need

not deal with all the findings of fact arrived at by the Lower

(2004) 4 SCC 26

Appellate Court. The above view was reiterated in

Jagannathan Vs Raju Sigamani and another2.

17. In Ashwin Kumar K.Patel Vs. Upendra J.Patel and

others3 the Apex Court held thus:

7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.

18. In P. Purushottam Reddy and another Vs. M/s

Pratad Steels Ltd.4, the Hon'ble Apex Court held that an

appellate Court should be circumspect in ordering remand

when the case is not covered by Rule 23 or 23-A or 25 of

Code of Civil Procedure. An unwarranted order of remand

(2012) 5 SC 540

AIR 1999 SC 1125

AIR 2002 SC 771

gives the litigation an underserved lease of life and must

therefore be avoided.

19. In Municipal Corporation, Hyderabad Vs Sunder

Singh5, the Hon'ble Apex Court observed thus:

15. where from the Court whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reserved 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 copy of its judgement and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under the 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 all just exceptions, be evidence during the trial after remand.

20. In Rajinder Sharma vs. Arpana Sharma6, the Hon'ble

Apex Court held thus:

"10. It appears that most of the documents which are sought to be adduced by way of adducing evidence are on record. In that view of the matter, the order to remit the matter to the trial Court is not warranted. The High Court, being the first appellate Court, is a Court of both fact and law. Therefore, it will be in the interest of justice for the High Court to decide the controversy in accordance with law.

21. In Uttaradi Mutt Vs. Raghavendra Swamy Mutt7, the

Hon'ble Apex Court held thus:

(2008) 8 SCC 485

AIR 2011 SC 3161

"17. The High Court has not recorded any special reasons as to why the parties should be relegated before the "trial Court" to re-decide the suit. The only reason, which, presumably, weighed with the High Court, is that it was necessary to find out the truth, as it is the duty of the Court. That could be done even by directing the First Appellate Court to record evidence, which it was competent to do while hearing the first appeal, had it allowed the applications Under Order XLI Rule 27 of Code of Civil Procedure by the Respondent/Defendant."

22. In Shivakumar and Ors. vs. Sharanabasappa and

Ors.8 the Apex Court held thus:

"WHETHER REMAND WAS CALLED FOR

25. Taking up the other point for determination, the submission of learned Counsel for the Appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A Code of Civil Procedure, in our view, remains totally bereft of substance; this submission has only been noted to be rejected.

25.1. The procedure relating to appeals from original decrees (usually referred to as 'regular first appeal') is provided in Order XLI of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in Appellate Court etc. are contained in Rules 16 to 29 under the sub-heading 'Procedure on hearing'. For their relevance, we may take note of the provisions contained in Rules 23, 23A, 24 and 25 of Order XLI Code of Civil Procedure as follows:

23. Remand of case by Appellate Court.-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

AIR 2018 SC 4796

AIR 2020 SC 3102

shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit 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.

23A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has Under Rule 23.

24. Where evidence on record sufficient, Appellate Court may determine case finally.-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed

by the Appellate Court or extended by it from time to time.

25.2. Rule 23A came to be inserted in Order XLI Code of Civil Procedure by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although Under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Some of the High Courts had made similar provisions by way of their respective amendments. Insertion of Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary.

25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded.

25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be

considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. (emphasis is mine)

25.4.1. The decision cited by the learned Counsel for the Appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the Appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the Plaintiffs were the owners of the land in dispute on which trespass was committed by the Respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the Appellant. Such part of the decree of the Trial Court was not challenged by the Defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the Appellant for allotment of an alternative land, the Appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the Appellant but proceeded to dismiss the entire suit with the finding that the Plaintiff-Appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the Appellant was not able to prove his title to the suit land due to non-examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the Appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the Appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of

any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case.

25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court.

The amendment which is applicable to State of Andhra Pradesh is same as that of the State of Madras, which reads as under:

(a) After the words "the decree is reversed in appeal", insert the words "or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case"; and

(b) delete the words "if it thinks fit", occurring after the words "the Appellate Court may".

23. Keeping the scope of the appeal, in the light of

authoritative expressions referred to sura, this Court must

consider whether the remand made by Lower Appellate Court

to Trial Court is sustainable in the facts and circumstances of

this case.

24. Whenever remand is warranted, the Appellate Court

must record reasons as to why parties should be relegated

before the trial Court to re-decide the suit. Remanding the

appeals to the Trial Court after setting aside the judgments

and relegating the parties to trial court again would cause

serious injustice to the litigants.

25. Order XLI Rule 23 of CPC deals with a situation where

the trail Court decrees the suit upon a preliminary point and

the same was reversed by appellate court the appellate court

if considers necessary in the interest of justice remand the

matter to the trial Court. Rule 23A deals with the situation,

otherwise than in Rule 23. Rule 25 deals with the situation

where the trial Court omitted to frame or try any issue, or to

determine any question of fact, which according to the

Appellate Court is essential to the right decision of the suit

upon the merits, the Appellate Court may, if necessary, frame

issues, and refer the same for trial to the Court from whose

decree the appeal is preferred. Rule 24 deals with the

situation, where the evidence is sufficient, the Appellate

Court may, after resettling the issues, if necessary, finally

determine the suit, notwithstanding that the judgment of the

Court below proceeded wholly upon some ground other than

that on which the Appellate Court proceeds.

26. In case on hand, suit was filed for perpetual injunction.

Plaintiff claimed title and possession to the schedule property

by virtue of registered Will dated 01.05.2004 marked as

Ex.A.1. Defendant pleaded that schedule property is

ancestral property and there are other coparceners i.e. son of

one pre-deceased daughter and another daughter and they

are also entitled to share in the schedule property and the

plaintiff is not in possession of plaint schedule property.

Plaintiff examined himself as P.W.1 and also examined P.W.2

one of the attestor of Ex.A-1. Having upheld the genuineness

of registered Will, trial Court dismissed the suit on the

ground that defendant being the life interest holder, during

her life-time, plaintiff cannot maintain suit for injunction.

27. Pending the appeal, sole respondent died, grandson

and daughter, filed application under Order I Rule 10 and

Section 151 of CPC and the same was allowed. Civil Revision

Petition filed by the plaintiff was dismissed on 18.03.2021.

28. During the course of arguments, respondents

contended that since the property was inherited by Rayulu

from his ancestors, it became his ancestral property and

hence, his daughters are entitled to share in the schedule

property. One of the daughters died, her son has to be

treated as coparcener and hence, the plaintiff alone cannot

get full rights over the schedule property by virtue of Ex.A-1

Will. It was further contended by learned counsel for

respondents that to establish the rights of respondents 2 and

3, the matter required to be remanded to the trial Court.

Taking into consideration, the said argument of learned

counsel for respondents, by invoking Order 41 Rule 23(A) of

CPC, the lower appellate Court remanded the matter to the

trial Court by setting aside the judgment and decree of the

trial Court.

29. As indicated supra, suit was filed injunction simplicitor.

Plaintiff asserted title to the property by virtue of Ex.A-1 Will.

Defendant also pleaded in the written statement that there

are other coparceners and hence, rights will not flow to the

plaintiff under Ex.A-1 Will. Trial Court in fact recorded the

finding that ancestral properties of Rayulu were partitioned

under registered partition deed dated 06.08.1973. Trial Court

further recorded finding basing on evidence that plaint

schedule building, as per the recitals in Ex.A-1 was

purchased by Rayulu from one Matta Philp. Trial Court

having come to the conclusion that plaintiff could establish

the genuineness of Ex.A-1 Will, came to conclusion that

plaintiff is entitled to vested reminder and entitled to take

possession of schedule property after death of defendant.

Trial Court also recorded finding that plaintiff did not file any

piece of evidence to establish his possession and eventually,

dismissed the suit.

30. In fact, necessary pleadings were taken by defendant in

the suit and evidence was let-in in that regard. Trail Court

dismissed the suit having upheld the genuineness of Will and

other findings regarding properties. Legal representatives

came on record, after the death of party, shall not be allowed

to raise new pleads except to proceed with the matter basing

on the pleas available on record. Thus, Appellate Court, in

the considered opinion of this Court ought not to have

remanded the matter, without framing points required for

adjudication. Remand is not a matter of course as observed

by the Apex Court. In fact, the entire evidence is already on

record. Once the evidence is already on record, Appellate

Court being the final factfinding court shall consider the

same and record findings. An order of remand should not be

passed routinely. The power under Order XLI Rule 23 of CPC

is of wide amplitude and of a discretionary nature, but the

discretion should not be exercised arbitrarily but with

circumspection guided by sound and reasonable judicial

principles capable of being corrected by the Court of appeal.

It is to be remembered that when re-trial is ordered, it

amounts to allowing the party to fill in the lacuna crept at the

trial with eyes wide open to the basis of the pleadings and

issues raised and the trial concluded. In this case on hand as

observed supra, pleadings of respective parties are on record

as also evidence. Hence, appellate court ought not to have

remanded the appeal to the trial court by setting aside the

judgement. Appellate court should have decided the appeal

basing on the pleadings and evidence on record. In view of

the above discussion, the judgment under the appeal is liable

to be set aside.

31. Accordingly, the Civil Miscellaneous Appeal is allowed.

The judgment and decree dated 06.05.2022 in A.S.No.110 of

2013 on the file of I Additional District Judge, Eluru is set

aside. Appeal A.S.No.110 of 2013 is restored to its file. Since

the appeal is of the year 2013, the Appellate Court shall

dispose of the same in accordance with law, within a period

of three months from the date of receipt of a copy of this

judgment. Appeal shall be disposed of on merits uninfluenced

by any of the findings of this Court. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 3rd November, 2022

PVD