Thummaluru Vanajakshamma,Died vs Thummaluru Venkata Siva Reddy,
2023 Latest Caselaw 181 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

      CIVIL MISCELLANEOUS APPEAL No. 265 OF 2022

JUDGMENT:

The appellants and respondents herein who are plaintiffs

and defendants in the suit respectively, hereinafter referred to

as Plaintiffs and defendants respectively. The plaintiffs filed the

suit to declare the gift deed executed by the 1st defendant in

favour of the 2nd defendant is not binding on the plaintiff and for

consequential relief of permanent injunction. The suit OS

No.129 of 2012 was dismissed by an order dated 18.11.2017 by

the Junior Civil Judge, Rajampet.

2. Aggrieved by the said judgment and decree in O.S. No.129

of 2012 on the file of the Junior Civil Judge, Rajampet, the

Plaintiff filed an appeal vide A.S. No.4 of 2018 on the file of the

III Additional District Judge, Rajampet. The Lower Appellate

Court Judge by an order dated 06.07.2022 has set aside the

judgment and decree in the suit and remanded back to the trial

court.

3. Against the said remand order, the plaintiff has filed the

present Civil Miscellaneous Appeal. It is the contention of the

plaintiff that the 1st appellate court failed to see the evidence on

record which is sufficient to decide the matter by framing issue

and remanding the matter to lead additional evidence and

additional written statements. Leading the evidence may cause

unnecessary delay in disposal of the suit. The other grounds

raised by the plaintiff, which are disputed facts, which have

already answered by the trial court.

4. It appears from the record that the plaintiff filed an

amendment petition seeking relief of declaration of title apart

from the relief to declare the gift deed executed by the 1st

defendant in favour of the 2nd defendant is not binding upon

them. As the suit has become comprehensive suit, the lower

appellate court has remanded the matter to the trial court to

give an opportunity to defendants to file additional written

statement and after receiving the additional written statement to

frame an additional issue basing on the pleadings and after

settlement of additional issue, the court shall afford opportunity

to both parties to lead evidence on such issue and give a finding

on such issue. Holding that it is nothing but a fresh trial,

therefore, suit is remanded to the trial court for fresh disposal.

5. It is the contention of the plaintiff, the appellate court

ought to have been undertaken the said process and ought to

have been framed an issue and can be dealt with accordingly by

the appellate court. Therefore, remanding the matter to the trial

court is bad in law and relied on the following judgments.

6. 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 could 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.

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

vs. Shivashankara and Ors 2 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

(2018) 10 Supreme Court Cases 484

2009 (8) SCC 231

2016 (1) ALD 564

28. In Saraswathi Devi Vs. Jujjurn Satyanarayana Raju 4

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 necessary upon reversing the decree and judgment of

(1985) 2 ALT 478

(1989) 1 ALT 506

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.

8. The above said issues held in series of Judgments by the

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

Sharanabasappa and others 6 and Somakka (dead) by Lrs

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

Purushottam Tiwari 8 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. The

whole case is therein open for rehearing both on question of fact

and law. The judgment of the mind and record findings

AIR 2020 Supreme Court 3102

2022 4 ALD 180

(2001) 3 SCC 179

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.

9. 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.

10. In P. Purushottam Reddy v. Pratap Steels Limited 9

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 issue which was not

raised in the written statement. In Jagarlamudi Rosaiah v.

Daggubati Venkanna10 held in the following manner

(2002) 2 SCC 686

2008 (1) ALT 88

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.

11. 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

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

2017 (3) HLT 174(SC)

(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 others 13 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.

Challa Venkatappa14 and in Satnam Singh and another v.

Malook Singh and others15 held in the above said manner.

12. Per contra, learned counsel for the defendants would

submit that the plaintiffs are not aggrieved party who filed the

suit to declare the gift deed executed by the Defendant No.1 in

favour of the 2nd defendant is not binding upon the plaintiffs

1999 AIR (SC) 1125

1961 ALT 195

AIR 1961 AP 226

(2008) 11 SCC 798

and the said suit was dismissed. Against the said judgment

appeal was filed by the plaintiffs and the same was allowed and

remanded back to the trial court allowing the application for

amendment of the prayer by the plaintiffs.

13. Therefore, to give an opportunity to the defendants to file

additional written statement but for allowing the amendment of

the prayer. The lower appellate court has rightly remanded the

matter and the plaintiffs are not aggrieved, therefore, prayed to

dismiss the Civil Miscellaneous Appeal and relied on the

judgment of the Hon'ble Apex Court J. Balaji Singh v. Diwakar

Cole. As per the judgment of the Hon'ble Apex Court, if it is not

possible to the first appellate court who have recorded evidence

in the appellate court, having regard to the nature of factual

controversy involved and keeping in view of the nature of

additional evidence filed, which too needed to be proved in

evidence, if it was not possible to retain the appeal to itself and

invite finding only on additional evidence by taking recourse

under Order 25 Rule 3 would enable the trial court to appreciate

the entire evidence in its proper perspective, and if felt

appropriate to remand the matter to the trial court.

14. The judgments relied by the appellants herein are not

applicable to the present facts of the case.

15. Where the appellant herein has filed an application to

amend the prayer and sought relief of declaration of title.

Therefore, the lower appellate court has rightly remanded the

matter to the trial court for fresh disposal after giving an

opportunity to both the parties to lead evidence and the

judgment relied by the respondents herein in J. Balaji Singh

case is squarely applicable to the present facts of the case and

the appellant herein is not aggrieved party and his appeal was

allowed and remanded back to the trial court on the application

filed for amendment of the prayer for the aforesaid reasons the

Civil Miscellaneous Appeal fails and the order of the lower

appellate court is upheld and the trial court shall dispose of the

suit as per the directions of the lower appellate court passed in

A.S. No.4 of 2018 dated 06.07.2022.

16. With the above said direction, the Civil Miscellaneous

Appeal is dismissed. No costs.

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. 265 of 2022 Date: 18-01-2023

Harin