Polimera Bharathi vs Kayapati Laxmidevi
2023 Latest Caselaw 180 AP

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

     CIVIL MISCELLANEOUS APPEAL No. 643 OF 2016

JUDGMENT:

The Plaintiff filed suit against the defendants for declaration

of right and title over plaint A and B Schedule properties, for

recovery of possession, mandatory injunction, removal of the

structures made in Schedule-A and Schedule B properties and the

compound wall constructed around Schedule A & B properties and

for consequential relief of permanent injunction restraining the

defendants and their men from over interfering with and disturbing

in any way from the peaceful and lawful possession over the plaint

B Schedule properties and for cost of the suit.

2. The detailed facts of the suit averments are not necessary for

dispose of the Civil Miscellaneous Appeal. The Trial Court has

framed the following issues:

1. Whether the plaintiff is entitled for declaration of right and title over the A and B schedule properties by virtue of sale deed dated 15.07.2008?

2. Whether the plaintiff is entitle for recovery of possession from the defendants in respect of A & B Schedule properties?

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

4. Whether the plaintiff is entitled to grant mandatory injunction directing the defendants to remove the unlawful construction made in A & B Schedule properties?

3. After considering the evidences adduced by both the parties,

the trial court negative all the issues and eventually dismissed the

suit filed by the plaintiff. Aggrieved by the said judgment and

decree dated 12.12.2014 in O.S. No.58 of 2009 passed by the

Junior Civil Judge, Tadipatri, the Plaintiff filed the appeal before

lower appellate court. It was numbered as Appeal Suit No. 1 of

2015. The Lower Appellate Court by an order dated 11.08.2015

has remanded the matter to the trail court.

4. Aggrieved by the said judgment and decree dated

11.08.2015, the 2nd defendant who is appellant herein has

preferred the present Appeal under Order 43, Rule 1(u) of CPC.

5. The lower appellate court has framed similar issues as

framed by the trial court after adjudication has remanded the

matter back to the trial court observing that "the evidence brought

on record by both the parties before the trial court is not sufficient

to decide the controversy between both parties and they have not

taken any steps to send the available public records to prove their

respective versions. The plaintiff omitted to add necessary parties.

In order to give finality to the litigation the court thought that it is

just and necessary to set aside the decree and judgment of trial

court dated 12.12.2014 and remitted the matter back to the trial

court with a direction to permit the plaintiff to implead other legal

heirs as parties to the Suit and to permit both the parties to

adduce further evidence on their behalf in respect of all the issues

and to dispose of the matter afresh.

6. The appellant herein who is defendant no.2 in the suit would

contend that the lower appellate court can remand the matter

under Order XLI Rule 23A finally, where the court from whose

decree an appeal is preferred has omitted to frame an issue or fail

to determine any question of fact which appears to the appellate

court essentially to the right decision of the suit upon the merit

and the appellate court if necessary frame an issue and refer the

same to the trial court from whose decree, the appeal is preferred.

7. When appellate court found that 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.

8. The appellate court cannot remand this matter for receiving

additional documents under Order 41 Rule 27. The lower

appellate court has to undertake the same.

9. The appellate Court can permit to produce additional

evidence, whether oral or documentary if appellate court found

that the trial court has refused to admit evidence which ought to

have been admitted.

10. The appellate court can allow the additional evidence and the

same is not filed before the trial court and the party is able to

establish due diligence and the evidence was not within the

knowledge of the trial court.

11. The appellate court has to assign valid reasons while

allowing or dismissing the application to receive additional

evidence.

12. It is further contention of the appellant herein is that 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 should not be a

substitute of laxity but be stemmed from the need to render

substantial justice. The opposite party should not enlarge in the

appeal of such a scope of the dispute in the list by adducing

evidence afresh.

13. For the above said contentions the appellant herein has

relied the following judgments:

14. The Supreme court while dealing the issue for

remanding held that in Uttaradi Mutt v. Ragavendra Swamy

Mutt1 when no case was made out to adduce additional

evidence and in that event the entire case should not have

been remanded to the trial court for fresh disposal after

recoding fresh evidence as this case was not a case envisaged

under order 41 Rule 23 of CPC when the lower appellate court

cannot remand without any special reasons recorded as to

why the party should be recorded before the trial court to re-

decide the suit.

15. The Honble Supreme Court in H.P. Vedavyasachar

vs. Shivashankara and Ors2 when High Court cannot clear

up the trial court to dispose of the suit after taking evidence

under order 41 Rule 27 in Kesava Reddy v. A. Visupaksha

Reddy3, the composite High Court of Andhra Pradesh has

held that when an additional evidence produced for the first

time before the appropriate court remanding of case to trial

court for adjudication of suit a fresh after taking on recording

of additional evidence is not permissible in view of Order 41

Rule 28. In Saraswathi Devi Vs. Jujjurn Satyanarayana

(2018) 10 Supreme Court Cases 484

2009 (8) SCC 231

2016 (1) ALD 564

Raju4 the High court of Andhra Pradesh after following the

judgment of the Honble Apex Court the power under Order 41

rule 23 is wide amplitude and of discretionary in 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

should not be a substitute for laxity but be stemmed from the

need to render substantial justice. The order of remand

should indicate sufficient and cogent reasons for remitting the

matter for retrial and also held that it should be remembered

that when retrial is ordered it amounts to allowing the party

to fill in the lacuna crept at the trial with eyes wide open the

basis of the pleadings and issues raised and the conclusion

of the trial court and eventually held mere fact that the

evidence on record is not sufficient to enable a court to come

to different conclusion on an issue or a point is not a ground

to remit the matter. In Ameer Basha v. K.

Nagarathnamma, this Court after following the judgment of

A. Ramaiah v. A. Pedda Sayanna Sailoo (died)5 held that

the appellate court should record a finding that a retrial is

(1985) 2 ALT 478

(1989) 1 ALT 506

necessary upon reversing the decree and judgment of trial

court on merits and also to meet the requirement of Order 41

Rule 23A CPC and also held that remanding the matter to the

trial court cannot be in the nature by virtually reviving the

respondent who have an adequate opportunity to lead

evidence at the trial court and who had neglected to so is not

justified. And in the similar lines, judgment of

pronouncement in Purapabutchi Rama Rao v. Purapa

Vimala Kumari and held that trial Court has not recorded

any findings given to the effect that the judgment of the lower

court is erroneous and liable to be setaside as per the

procedure contemplated under Order 41 Rule 23 CPC.

16. The above said issues held in series of Judgments by

the Hon'ble Supreme Court namely Shivakumar and ors. V.

Sharanabasappa and others6 and Somakka (dead) by Lrs

vs. K.P. basavaraj (dead) by Lrs7 and in Santosh Hazari v.

Purushottam Tiwari8 the appellate court has jurisdiction to

reverse or affirm the findings of the trial court. First appeal is

a valuable right of the parties and unless restricted by law.

AIR 2020 Supreme Court 3102

2022 4 ALD 180

(2001) 3 SCC 179

The whole case is therein open for rehearing both on question

of fact and law. The judgment of the mind and record

findings supported by reasons on all issues arising along with

contentions put-forth, and pressed by the parties for decision

of the appellate court while reversing a finding of fact the

appellate court must come into close quarters with the

reasoning assigned by the trial court and then assign its own

reasons for arising at a different finding it would satisfy the

court hearing a further appeal that the first appellate court

had discharged the duty expected of it.

17. In Kollapudi Sriramulu v. K. Venkata Radha

Krishna Murthy and another in the said judgment apart

from the recording of reasons, the High Court has held that it

is not open to the opposite party to enlarge in the appeal of

such a scope of the dispute in the Lis by adducing evidence

afresh. In P. Purushottam Reddy v. Pratap Steels

Limited9 when the plea was not taken in the written

statement, the question of framing an issue did not therefore

arise. The Hon'ble Supreme Court held that it is not

permissible to remand the matter for question of framing an

(2002) 2 SCC 686

issue which was not raised in the written statement. In

Jagarlamudi Rosaiah v. Daggubati Venkanna10 held in

the following manner

As can be seen from the findings recorded, it is not as though the evidence available on record is insufficient. As against the evidence of P.W.1. apart from D.W. 1. D.Ws. 2 and 3 also had been examined. No doubt, the evidence of D.W. 2 and D.W. 3 had been disbelieved by the Court of first instance. The Appellate Court could have appreciated this evidence and could have disposed of the matter. Even in a case where the Appellate Court otherwise was satisfied that one of the issues had not been framed by the Court of first instance, this could have been done in the light of the language of Order 41, Rule 24 of the Code.

18. In Vidya Sagar Cole (died) and others v. J. Balaji Singh

and another, the High Court at Hyderabad held that remand

cannot be directed to enable a party to fillup lacuna in his

evidence in trial court. The Hon'ble Supreme Court in U.

Manjunath Rao v. U. Chandrashekar and another 11 held

that on perusal of the Rule for remand it is quite clear that

the judgment of the appellate court has to state the reasons

for the decision. While stating law the court has opined that

expression of general agreement with the findings recorded in

2008 (1) ALT 88

2017 (3) HLT 174(SC)

the judgment under appeal should not be a devise or

camouflage to be adopted by the appellate court for shirking

the duty cast on it. The same was observed in Santosh

Hazari (supra) and in Ashwinkumar K. Patel v. Upendra

J. Patel12 High Court should not ordinarily remand a case

under Order 41 Rule 23 CPC to the lower Court, merely

because it considered that the reasoning of the lower court in

some respects was wrong which leads to unnecessary delay

and cause prejudice to the parties in the case. In

Gottimukkala Ramachandrayya and others v. Kesari

Chandramouli and others13 Hon'ble High Court held that

not only the appellate court be satisfied with the judgment

and decree under appeal or unsustainable on the record

available in the case and in law, but the appellate court must

go further and must be satisfied that "the interest of justice"

demand a remand and that would only be the proper course

to take having regard to the entire circumstances of the case.

In the similar circumstances Vadla Veerabhadrappa v.

1999 AIR (SC) 1125

1961 ALT 195

Challa Venkatappa14 and in Satnam Singh and another v.

Malook Singh and others15 held in the above said manner.

19. The lower appellate court while remanding the matter

has observed that both the parties have not taken any steps to

send the available public records to prove their respective versions.

The plaintiff omitted to add necessary parties.

20. Under Rule 9 of Order 1 "no suit shall be defeated by reason

of the mis-joinder or non-joinder of parties, and the court may in

every suit deal with the matter in controversy so far as regards the

rights and interests of the parties actually before it":

[Provided that nothing in this rule shall apply to non-joinder of necessary parties.]

21. As per the provisio the non-joinder of the necessary party be

fatal to the suit. Which decision of the lower appellate court

directing the plaintiff to add parties to cover the lacunas of the

party.

22. Therefore, remanding on such issue is contrary to law for the

aforesaid reasons, the appeal in A.S. No.1 of 2015 is hereby set

aside and remand back to the lower appellate court to decide the

AIR 1961 AP 226

(2008) 11 SCC 798

matter afresh basing upon the observations made by this Court

and the judgments relied by this Court.

23. Accordingly, the Civil Miscellaneous Appeal is allowed

remanding the matter to the lower appellate court. The lower

appellate is directed to pass appropriate orders basing upon

above findings and judgments. However, no costs.

As a sequel miscellaneous applications pending, if any,

stands closed.

_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 18.01.2023 Harin

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

C.M.A. No. 643 of 2016

Date: 18.01.2023 Harin