Pulipati Naga Venkata Krishna Rao vs Shafathunnisa
2022 Latest Caselaw 7109 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL No.6 and 2018

JUDGMENT:

Plaintiff in O.S.No.385 of 1998 filed the above Civil

Miscellaneous Appeal under Order XLIII Rule 1 of CPC, against

the judgment and decree dated 19.12.2017 in A.S.No.7 of 2013

on the file of II Additional District Judge, Vijayawada,

remanding the matter to the trial Court by setting aside the

judgment and decree dated 31.10.2012 in O.S.No.385 of 1998

on the file of II Additional Senior Civil Judge, Vijayawada.

2. Parties to this judgment are referred to as they were

arrayed in O.S.No.385 of 1998.

3. Suit O.S.No.385 of 1998 was filed by plaintiff seeking

specific performance of agreement of sale dated 06.06.1996

directing the defendant to execute the registered sale deed in

favour of the plaintiff and to deliver vacant possession and for

granting of permanent injunction restraining the defendant from

alienating the plaint schedule property.

4. The case of plaintiff germane to decide this appeal is that

as per the terms of compromise in final decree among the

defendant, her sisters, mother and brother in O.S.No.190 of

1990 on the file of II Additional Subordinate Judge, Vijayawada,

the defendant got an extent of Ac.1.00 cents of land in

R.S.No.19 of Bhavanipuram towards her share along with other

properties; that defendant executed an agreement of sale in

favour of plaintiff on 06.06.1996 agreeing to sell an extent of

1000 square yards of vacant site out of Ac.1.00 cents of land;

that total sale consideration is Rs.2,00,000/-; that defendant

received Rs.50,000/- as advance on the date of agreement of

sale; that as per the terms of agreement of sale, defendant has

to obtain certified copy of final decree passed on 09.04.1996

after engrossing the same on N.J. Stamp papers and also to

obtain urban land ceiling permission on or before 05.12.1996

for the purpose of registration of sale in favour of plaintiff; that

in case defendant is not ready within the period, she has to pay

interest @24% per annum on advance amount till the date of

registration; that if the plaintiff is not ready to obtain sale deed,

he is liable to pay interest on balance sale consideration; that

plaintiff is always ready and willing to obtain regular sale deed;

that defendant received Rs.50,000/- each out of balance sale

consideration from the plaintiff on 24.09.1997 and 17.11.1997

and endorsed the same on the back of agreement of sale; that

defendant with a malafide intention is trying to sell away the

plaint schedule property to third parties; that plaintiff made a

paper publication on 13.09.1998 in Eenadu Daily paper

informing about agreement of sale dated 06.06.1996; that by

suppressing the suit agreement of sale, defendant entered into

an agreement with Tirupataiah to sell an extent of Ac.0.50 cents

including the plaint schedule property and filed an application

before the competent authority for permission under Section 26

of Urban Land Ceiling Act and hence, the plaintiff filed the suit

for the reliefs stated supra.

5. Defendant filed written statement and contended interalia

that she neither agreed to sell the plaint schedule property, nor

entered into any agreement of sale; that she did not receive

Rs.1,50,000/- at any point of time; that suit agreement of sale

is false and fabricated one; that the agreement of sale is created

with the assistance of scribe along with B.V.N.Murthy, who

inturn asked the defendant to sell the property to him, for which

defendant refused; that defendant never made any

endorsements on the agreement of sale; that defendant is not

aware of paper publication dated 13.09.1998; that defendant

intended to dispose of the property in 3rd week of August, 1998

at the time of marriage proposal of her daughter; that plaintiff

has no capacity to pay Rs.1,50,000/-; that cost of Ac.1.00 cents

is more than Rs.20 lakhs; that plaint schedule property is a

piece of agricultural land and it is not a vacant land as defined

under Urban Land Ceiling Act; that defendant never made any

application before the ULC authorities and eventually, prayed to

dismiss the suit.

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

the following issues:

(1) Whether the agreement of sale dated 06.06.1996 is true, valid, supported by consideration and binding on the defendant?

(2) Whether the plaintiff is entitled for specific performance of the agreement of sale dated 06.06.1996?

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

(4) To what relief?

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

P.W.1 and got examined P.Ws.2 and 3. Exs.A-1 to A-13 were

marked. On behalf of defendant, defendant examined herself

as D.W.1 and marked Exs.B-1 and B-37.

8. Trial Court by judgment and decree dated 31.10.2012

decreed the suit directing the defendant to execute a

registered sale deed in pursuance of agreement of sale dated

06.06.1996 in favour of plaintiff after receiving balance sale

consideration of Rs.50,000/- within two months from date of

judgment and also granted the relief of permanent injunction.

9. Aggrieved by the same, defendant filed appeal A.S.No.7

of 2013 on the file of II Additional District Judge, Vijayawada.

Along with appeal, defendant filed I.A.Nos.1232 of 2015 and

2087 of 2016. I.A.No.1232 of 2015 is filed under Order 41

Rule 27 of CPC seeking to remand the matter to the trial

Court to examine the handwriting expert in respect of report

dated 20.07.2012 by way of additional evidence. I.A.No.2087

of 2016 is filed under Order 41 Rule 27 of CPC seeking to

receive market value certificates issued by the Sub Registrar

on 21.12.2012 showing the value of property as on

06.06.1996 and on 01.12.2011 and, also to receive the

certificate dated 19.01.2016.

10. Lower appellate Court being final fact finding Court

framed the following points for consideration?

(1) Whether the petitioner is entitled to adduce additional evidence as prayed in I.A.No.1232 of 2015 so as to examine the handwriting expert

who compared Exs.A-1 to A-3 and furnished his opinion by remanding the matter to the trial Court as prayed?

(2) Whether the petitioner is entitled to adduce additional evidence as prayed in I.A.No.2087 of 2016 so as to show market value of the plaint schedule property as on 6.06.1996, 01.12.2011 and 19.01.2016?

(3) Whether the plaintiff before the trial Court has proved the execution of suit agreement of sale under the cover of Ex.A-1 by the defendant and receipt of Rs.50,000/- by her on the said date and further receipt of Rs.50,000/- + Rs.50,000/-

       under the cover       of payment endorsements
       Exs.A-2 and A-3?

(4) Whether the plaintiff before the lower Court has proved his entitlement for specific performance of agreement of sale and permanent injunction? (5) Whether the judgment and decree of the trial Court is tenable under law and facts and whether there are any grounds to interfere with the decree and judgment of the trial Court?

(6) To what relief?

11. Both the interlocutory applications were dealt along

with the appeal. I.A.No.1232 of 2015 was allowed.

I.A.No.2087 of 2016 was dismissed.

12. Lower Appellate Court by judgment and decree dated

19.12.2017 allowed the appeal A.S.No.7 of 2013 and

remanded the matter to the trial Court permitting the

appellant to adduce additional evidence before the trial Court

by examining the handwriting expert, who furnished his

opinion in report dated 20.07.2012 in view of the allowing

I.A.No.1232 of 2015.

13. Assailing the said judgment and decree, the present

Civil Miscellaneous Appeal is filed.

14. Heard Sri Amancharla V.Gopala Rao, learned counsel

for appellant and Sri P.Veera Reddy, learned senior counsel

on behalf of respondent.

15. Learned counsel for the appellant would submit that

lower appellate Court failed to appreciate that the expert

opinion has been considered by the trial Court. He would

submit that lower appellate Court also failed to appreciate

that trial Court is having authority under Section 73 of the

Evidence Act to compare signature, writing seal and other

admitted documents with the material available on record. He

would further submit that lower appellate Court failed to

appreciate that the signatures of respondent/defendant were

tallied with her signatures on vakalats and, also on Exs.A-1

to A-3. He would further submit that lower appellate Court

ought to have considered that variation in signatures after a

gap of 14 years is a common phenomenon and cannot be an

issue to the adjudication process. He would further submit

that lower appellate Court failed to discharge duty cast upon

it while adjudication I.A.No.1232 of 2012 as appeal suit is

nothing but continuation of original suit.

16. Learned senior counsel appearing for the respondent

supported the judgment.

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

substantial questions of law arise for consideration:

(1) Whether the judgment of the Lower Appellate Court in remanding the matter to the Trial Court by setting aside the judgement is sustainable?

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

18. 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

Appellate Court. The above view was reiterated in

Jagannathan Vs Raju Sigamani and another2.

19. Keeping the scope of the appeal, this Court consider

whether the remand made by Lower Appellate Court to Trial

Court is sustainable in the facts and circumstances of this

case.

20. 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

(2004) 4 SCC 26

(2012) 5 SC 540

and relegating the parties to trial court again would cause

serious injustice to the litigants.

21. 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.

22. 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

AIR 1999 SC 1125

AIR 2002 SC 771

gives the litigation an underserved lease of life and must

therefore be avoided.

23. 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.

24. 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.

25. 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."

26. 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".

27. 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.

28. As narrated supra, suit was filed for specific

performance of agreement of sale. Defendant pleaded forgery.

Defendant filed I.A.No.1476 of 2004 to send the documents

i.e., sale agreement to the handwriting expert to compare

with the signatures taken in the open Court. Another

I.A.No.45 of 2004 was filed to send contemporaneous

signatures on certain documents for comparison with

disputed documents. By a common order dated 05.07.2005

I.A.No.45 of 2004 was allowed to compare the signatures on

Ex.A-1 with contemporaneous signatures i.e., signature in

compromise petition in I.A.No.2405 of 1996; original

rectification deed dated 10.12.1998 and original sale deed

dated 10.12.1998.

29. Two Civil Revision Petitions were filed being

C.R.P.No.4880 of 2005 and C.R.P.No.35 of 2006. By common

order, the composite High Court allowed I.A.No.1476 of 2004

thereby directed the Lower Court to send the signatures

obtained in the open Court for comparison. Accordingly,

expert gave opinion and send report that signatures of Q-1 to

Q-6 are not tallied with signatures in S-1 to S-10.

30. Trial Court in Paragraph-16 of its judgment discussed

about the conduct of the defendant regarding denial of her

signatures in other documents. Having considered all the

aspects including the expert report, trial Court concluded

that it is not safe to reply upon handwriting experts report

and the report is not conclusive proof.

31. Lower appellate Court in Paragraphs 22 to 27 of the

judgment discussed about the filing of two interlocutory

applications under Section 45 of Indian Evidence Act;

disposal of the same; filing two Civil Revision Petitions and

disposal of the said C.R.Ps in detail. In Paragraph-27, lower

Appellate Court concluded that "reporting no further evidence

on behalf of the defendant appears to be sheer inadvertence

inspite of diligence of defendant to get documents examined by

hand writing expert, as such the case of appellant squarely

coming under the purview of Order 41 Rule 27 CPC."

32. Suit was filed in the year 1998. Remanding the matter

nearly after 19 years of institution of the suit will cause great

hardship to the plaintiff. The findings of the trial Court are

based on record. The lower appellate Court could have

decided the appeal, in case lower appellate Court is of the

view that opinion of the handwriting requires consideration,

by exercising its power under Order 41 Rule 28 CPC. Instead

remanding the matter to the trial Court by setting aside the

judgment is unsustainable. 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.

33. In view of foregoing discussion, the Civil Miscellaneous

Appeal is allowed. The judgment and decree dated

19.12.2017 in A.S.Nos.7 of 2013 and I.A.No.1232 of 2015 on

the file of II Additional District Judge, Vijayawada is set aside.

Appeal A.S.No.7 of 2013 is restored to its file. Since the

appeal is of the year 2013, the lower appellate Court shall

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

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

judgment. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 16th September, 2022

PVD

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL MISCELLANEOUS APPEAL No.6 and 2018

16th September, 2022

PVD