Padavala Gurubrunda Kumari, vs Sk. Kalesha Kalimuddin
2023 Latest Caselaw 5290 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

 CIVIL MISCELLANEOUS APPEAL No.574 of 2018, CIVIL
    REVISION PETITION Nos.7512 and 7285 of 2018


COMMON JUDGMENT :

      The present CMA is filed against the judgment and

decree dated 20.10.2017 passed in A.S No.123 of 2009 on the

file of Principal District Judge, Nellore, SPSR Nellore District in

O.S No.330 of 1988 on the file of III Additional Junior Civil

Judge, Nellore.


      2. Originally the suit in O.S No.330 of 1988 was filed by

the plaintiff/appellant herein before the III Additional Junior

Civil Judge, Nellore (for short "the trial Court") for grant of

declaration and for grant of mandatory injunction. The same

was partly allowed in favour of the plaintiff with suit costs and

declaring the plaintiff's title over the suit schedule property in

BEFC with as width of 5 feet 8 inches from E to B and 7 feet

between F to C to the plaintiff and also directed the defendants

to deliver the vacant possession within three months from the

date of judgment, however failing which the plaintiff is at

liberty to do the same due to process of law. Aggrieved by the

same, the 7th defendant in O.S.No.330 of 1998 has preferred
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an appeal in A.S No.123 of 2009 on the file of the Principal

District Judge, Nellore (for short "the first appellate Court").


      3. For the sake of convenience, the parties herein after

referred to as arrayed in the suit in O.S.No.330 of 1998 before

the trial Court.


      4. The plaintiff instituted a suit in O.S No.330 of 1988

before the trial Court and she is the absolute owner of the suit

property shown as ABCD in the plaint plan, to an extent of Ac

0.16 ½ cents purchased from one Lade Mohan Rao under a

sale deed dated 15.5.198 and the plaintiff constructed a house

with asbestos sheet roof. While so, the defendants No.1 to 3

put up iron fencing to the north of their site, encroaching into

the plaintiff's site and the plaintiff demanded them to remove

fencing. Though the defendants agreed to remove, filed a suit

in O.S No.610 of 1985 on the file of I Additional Junior Civil

Judge, Nellore for grant of permanent injunction, which was a

counterblast to the claim of the plaintiff. On the other hand,

the defendants No.2 and 3 sold their site to the defendants

No.4 to 6, who are subsequent purchasers, impleaded as

proper and necessary parties, and thus the plaintiff filed suit.
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       5.     The defendants No.1, 2 to 5 resisted the suit of

plaintiff.    The 1st defendant filed written statement and the

same was adopted by defendants No.2 to 5 and while denying

all the allegations made in the plaint, stated that the

defendants No.2 and 3 acquired under their sale deed, and 3rd

defendant sold an extent of 40 Ankanams, with specified

boundaries, to 4th defendant, with specified boundaries, to 4th

defendant, under registered sale deed dated 15.6.1988, and

defendants No.2 and 3 are the owners of site shown as BEFC

in plaint plan, and they are in possession of the same, and

plaintiff has no right or interest, in the said site shown as

BEFC, prayed to dismiss the suit.


       6. The 6th defendant remained ex parte before the trial

Court.


       7.     Basing on the above pleadings, the trial Court has

framed the following issues:

       i)      Whether the plaintiff is entitled to declaration and possession
               of BEFC site as per plaint plan?
       ii)     Whether the plaintiff is entitled for mandatory injunction as
               prayed for?
       iii)    To what relief?



       8. During the course of trial, on behalf of the plaintiff,

she herself examined as PW.1 and Ex.A1 to Ex.A12 were
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marked and on behalf of the defendants No.1 to 5, 4 th

defendant was examined as DW.1 and no documents were

marked on their behalf.


      9.   The trial Court after hearing both sides and upon

perusing the entire material available on record, partly decreed

the suit vide judgment and decree dated 20.10.1992 declaring

that the plaintiff is the absolute owner of site shown as BEFC

in the plaint plan, to a width of 5 feet 8 inches from E and B,

and 7 feet between F to C, with a direction to defendants to

deliver vacant possession of the same, within three months,

and as the iron fencing was removed during pendency of the

suit, hence the relief of mandatory injunction was negative.

Being not satisfied with the same, the defendants No.4 and 5

filed an appeal in A.S.No.19 of 1998 before the II Additional

District Judge, Nellore.   During pendency of the said appeal,

the defendants filed I.A No.98 of 1998 under Section 7-A of

A.P. land Grabbing (Prohibition) Act 1982 to transmit the

appeal to the Special Tribunal constituted under the Act, on

the ground that the plaintiff contended in her case that

defendants trespassed into suit property.       The same was

dismissed vide order dated 11.11.1998 with an observation

that the dispute involved in the suit is relating to boundary
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dispute between the parties, and not a dispute of land

grabbing."


         10.     Aggrieved by the said order, the defendants No.4

and 5 preferred CRP No.5215 of 1998 before this Court and

the same was allowed vide order dated 29.6.1999 holding that

the dispute involved in the suit is triable by land grabbing

tribunal' and consequently the judgment dated 20.10.1992

made in O.S No.330 of 1998 on the file of trial Court was set

aside.         Pursuant to the order of the High Court in CRP

No.5215 of 1998, the proceedings in the said O.S No.330 of

1998 were transmitted to Special Tribunal and it was

registered as Original Petition No.2 of 2000.


         11.     Basing on the above pleas, the trial Court also

framed the following additional issues on 11.9.2006:

         i)      Whether the 7th defendant is the absolute owner of plaint
                 schedule property?
         ii)     Whether this court has no jurisdiction to entertain the suit?


         12.     The Court blow, once again, on considering the

evidence adduced by the plaintiff and defendants and the

material placed on record, partly decreed the suit of plaintiff

vide judgment dated 15.6.2009.                Feeling aggrieved by the

impugned judgment dated 15.6.2009 in O.S. No.330 of 1998,
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the 7th defendant has preferred the present A.S No.123 of 2009

on the file of the first appellate Court against the plaintiff and

defendants No.1 to 3, 5, and 6, by raising some grounds. On

hearing the 7th defendant and plaintiff, and upon perusing the

material available on record including the findings of the trial

Court in its impugned judgment, the first appellate Court has

framed the following point for consideration:

       Whether the decree and judgment dated 15.6.2009 made in
O.S No.330 of 1998 on the file of III Additional Junior Civil Judge,
Nellore, are sustainable in law?


      13.     After   perusing   the   entire   material   and   on

considering the submissions of both the counsels,          the first

appellate Court has allowed the appeal setting aside the

judgment and decree dated 15.6.2009 made in O.S No.330 of

1988 on the file of the trial Court and the said suit was

remanded to III Additional Junior Civil Judge, Nellroe for

disposal afresh and also directed to decide the effect of death

of 4th defendant on the suit, and by answering the additional

issues framed on 11.9.2006 therein and also directed the trial

Court to dispose of the suit at the earliest, not later than three

months from the date of receipt of judgment. Challenging the

same, the present Civil Miscellaneous Appeal came to be filed

by the appellant/plaintiff.
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      14. On receipt of the above judgment in A.S., the trial

Court reopened the case for fresh consideration and at that

stage, the 7th defendant has filed I.A No.642 of 2018 and I.A

No.543 of 2018 before the trial Court seeking to recast the

issues by framing additional issues and also seeking to reopen

the suit to adduce evidence in support of D7. The same were

dismissed by the trial Court vide separate orders dated

8.11.2018 on the ground that if D3 and D4 sold away the

property to the petitioner/D7 during the pendency fo the suit

and they died, the entire suit cannot abated as the present

petitioner/D7 is the legal survivor of the deceased since he is

claiming his rights over the property through the deceased D3

and D4 and hence the trial Court does not see any reasonable

ground to reopen the suit to adduce further evidence.

Questioning the same, the 7th defendant has preferred CRP

Nos.7285 of 2018 and 7512 of 2018.


      15.   While so, during pendency of the CMA No.574 of

2018, learned counsel for the respondent in CRP No.7512 of

2018 represented that this matter is connected to CMA No.574

of 2008 and the disposal of the said appeal has impact on the

result in CRP No.7512 of 2018 and CRP No.7285 of 2018 and

hence requested to club these matters.

16. Since the issue involved in the present three matters

viz., CMA No.574 of 2018, CRP No.7512 of 2018 and CRP

No.7285 of 2018, the same are taken up together for disposal

by a common judgment.

17. This Court, vide order dated 25.04.2019, in I.A No.1

of 2018, has granted interim stay of all further proceedings in

O.S No.330 of 1998 till 12.6.2019 and the same is extended

from time to time. Later, the present three matters were

clubbed.

18. Heard Sri V. Siva Prasad Reddy, learned counsel for

the appellant in CMA and learned counsel for the respondents

in CRPs and Sri P. Sridhar Reddy, learned counsel appearing

for the respondents in CMA and learned counsel for the

petitioner in CRPs.

19. On hearing, learned counsel appearing for the

appellant submits that the judgment and decree of the first

appellate Court is contrary to law, weight of evidence and

probabilities of the case. He submits that the first appellate

Court has erred in remanding the suit on the ground that the

additional issues which were framed on 11.9.2006 were not

answered by the trial Court. He further submits that the first

appellate Court has erred in remanding the suit in the absence

of any plea taken either by the 1st respondent/7th defendant or

any of the defendants in their written statements that the suit

is bad for non joinder of necessary parties and proper parties

i.e., legal representatives of the 4th defendant failing to note

that the wife of the 4th defendant is proper party to the suit.

The first appellate court ought to have considered that the

power of remand to be exercised by the first appellate Court

sparingly and the appellate court has same power on question

of law and fact as that of trial court, the power of remand is

strictly a limited power. He further submits that the lower

appellate court ought to have considered that the appellate

Court has ample power to decide the unanswered issues and

frame new issues unless there is necessity for recording

evidence, lower appellate Court can decide any issue which is

necessary for disposal of the case without delay.

20. To support his contentions, learned counsel for the

respondents has relied upon a catena of decisions reported in

(i) Shivshankara and another vs. H.P. Vedavyasa Char1,

wherein the Hon'ble Apex Court held that:

We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when

2023 Livelaw (SC) 261

the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. In this case, it is to be noted that along with the deceased 3rd defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest. Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the non- substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail.

(ii) In a case of Sathyanath and another versus

Sarojamani2, wherein the Apex Court held that:

The provisions of Order XIV Rule 2 are part of the procedural law, but the fact remains that such procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language prior to the unamended Order XIV Rule 2. If the issue is a mixed issue of law and fact, or issue of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the Court may decide such issues with the sole objective for the expeditious decision. Thus, if the Court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.

21. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors.13, this Court held as under:

"39. Our courts are usually short of time because of huge 13 (2012) 6 SCC 430 pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for

(2022) 7 Supreme Court cases 644

all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."

(iii) In another case reported in Dhurandhar Prasad

Singh versus Jai Prakash University and others3, wherein

the Apex Court held that :

Now we proceed to consider the second question posed, but before doing so, for better appreciation of the point involved, it would be appropriate to refer to the provisions of Order 22 Rule 10 of the Code which runs thus:-

10. Procedure in case of assignment before final order in suit.(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

21. Learned counsel for the appellant while relying upon

the above citations submits that, it is settled law that when a

suit is remanded for a decision afresh with certain specific

directions, the jurisdiction of the trial Court after remand

depends upon the terms of the order of remand and the trial

Court cannot either consider matters other than those

specified in the remand order, or enter into questions falling

outside its limit. He further submits that, no jurisdiction in

the trial Court to allow an amendment of the pleadings, which

was outside the scope of the remand order. Therefore, learned

(2001) 6 Supreme Court Cases 534

counsel requests this Court to pass appropriate orders by

setting aside the impugned orders in the present cases.

22. Per contra, learned counsel for respondents submits

that the first appellate court has rightly concluded and

remanded the matter back to the trial Court for fresh disposal

and hence prayed to dismiss the appeal. To support of his

contentions, learned counsel for the repondents has relied

upon a decision of this Court reported in Sultan Saleh Bin

Omer v. Vijayachand Sirimal4, wherein the Andhra Pradesh

High Court held that :

17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other, hand, according to Order 15, Rule 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In eases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalised by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or making documents, merely on the ground that the trial is closed and the matter is posted for arguments, whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated.

18. I am supported in this view by the decision in Hans Raj v. Sohan Singh, , It was observed by Harnam Singh, J., that the expression "hearing of the suit" means the hearing at which the Judge would be taking evidence or hearing arguments, or would have to consider the

Air 1966 ANDHRA PRADESH 295

questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it.

23. Learned counsel for the respondents while relying

upon the above citation, submits that, according to Order 15,

Rule 3, the hearing of the suit includes both production of

evidence, as well as argument. In cases, where the suit has not

been posted for judgment, but is posted for hearing arguments

of one side or the other, it should be remembered that the

hearing of the suit is not concluded, though the recording of

evidence might have been finalized by both the parties. In

such cases, either party is not precluded from making a

request for examination of additional witnesses, or making

documents, merely on the ground that the trial is closed and

matter is posted for arguments, whether the request should be

granted or not, is however a matter to be decided on its merits,

bearing in mind the fact that it is belated. Therefore, learned

counsel submits that the first appellate Court has rightly held

and hence prayed to dismiss the present CMA.

24. On perusing the impugned judgment in A.S No.123

of 2009, it is observed that the suit property belongs to A.

Parandhamaiah-4th defendant, who is the husband of 5th

defendant and father of 2nd defendant, and the 7th defendant

purchased the suit site under registered sale deed dated

9.8.1990 and since then he is in possession and enjoyment of

same, and 7th defendant also purchased another item, situated

to the west of suit site, and thereafter constructed a three-

storied building by spending Rs.22.00 Lakhs, and suit site is

the only way to reach his house from Aravind Nagar main

road, and there is no to other way to reach his house.

25. It is also observed that, basing on additional pleas,

the trial Court has framed additional issues on 11.9.2006 but

the trial Court has not discussed about the additional issues.

This Court is of the view that, in a case, where even in the

event of death of one of the defendants, when the

estate/interest was being fully and substantially represented

din the suit jointly by the other defendants along with

deceased defendant and when they are also his legal

representatives. In such cases, by reason of non-impleadment

of all other legal heirs consequential to the death of the said

defendant, the defendants could not be heard to contend that

the suit should stand abated on account of non-substitution of

all the other legal representatives of the deceased defendant.

26. It is also pertinent to mention here that, as per

Section 99 of CPC, reads as under:

Section 99 - No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1 [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :

27. On a plain reading of the entire proceedings that

went on before the trial Court, as well as its findings in the

impugned judgment, three primary questions that hover in the

proceedings, and they need to be addressed at first, before

going into the factual aspects, and to re-appreciate the

evidence available on record, are as follows:

1) The death of 6th defendant during pendency of appeal on 8.5.2015;

2) The death of 4th defendant during pendency of the suit in O.S No.330 of 1998 on 6.1.1999; and

3) The additional issues No.1 and 2 framed by the trial Court on 11.9.2006, went unanswered in the impugned judgment.

28. So, in view of the above, the first appellate Court

has rightly pointed out the above aspects. It is also observed

in the impugned judgment that the first appellate Court held

in para-14 (iii) that "this issue No.1, answered in favour of

plaintiff declaring her right o suit property is sufficient to hold

that additional issue No.1 framed, shall go negatively against

the 7th defendant, and there is no need to further give a

specific finding or decision on the said issue, but however, the

Court below has totally ignored the additional issue No.1 and

has not at all referred in its judgment, it clearly establishes

that the trial Court has failed in its duty to answer the said

issue.

29. Viewed from any angle, the first appellate Court has

rightly allowed by setting aside the impugned judgment and

decree dated 15.6.2009 passed in O.S No.330 of 1998 on the

file of the trial Court and remanded the matter back to the trial

Court for fresh disposal. Therefore, finding no merit in the

instant civil miscellaneous appeal and devoid of merits, the

same is liable to be dismissed.

30. Accordingly, the Civil Miscellaneous Appeal is

dismissed.

31. Insofar as CRP Nos.7512 of 2018 and 7285 of 2018

are concerned, since the main suit itself is remanded back to

the trial Court for fresh disposal, there is necessity to reopen

the suit and recast the issues which are necessary for

determining the matters in controversy between the parties in

the above suit, particularly recasting of issues taking into

consideration of the defence taken by the 7th defendant only

and allow him to adduce his evidence.

32. It is pertinent to refer to Order 14 Rule 5 of CPC,

which reads as under:

ORDER 14 RULE 5 CPC :

Power to amend and strikeout issues:

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

33. Therefore recast the issues and recasting of issues

can be done at any stage of the suit even by the date of

judgment suo motu. Therefore, this Court deems fit to allow

these revision petitions by setting aside the impugned orders

in both the revision petitions.

34. Accordingly, the Civil Revision Petitions are allowed.

The impugned orders in both the civil revision petitions are set

aside and the trial Court is directed to reopen the suit to

enable the 7th defendant to adduce evidence in relation to his

right and title over the plaint schedule property as per the

additional issues framed on 11.09.2006 in the said suit.

Further, the trial Court is directed to dispose of the suit in O.S

No.330 of 1998, as expeditiously, as possible, preferably,

within a period of four (04) months from the date of receipt of a

copy of this order.

35. There shall be no order as to costs.

36. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :         04-11-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL MISCELLANEOUS APPEAL No.574 of 2018, CIVIL REVISION PETITION Nos.7512 and 7258 of 2018

Date : 04.11.2023

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