Ramamurthy S/O Dyamanna Karjagi vs Ramanna @ Ramesh
2021 Latest Caselaw 5720 Kant

                              1




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 8TH DAY OF DECEMBER, 2021

                           BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

              M.S.A. NO.100082 OF 2017 (RO)
BETWEEN:
1.      RAMAMURTHY
        S/O DYAMANNA KARJAGI,
        AGE:27 YEARS, OCC:AGRICULTURE,
        NOW AT R/O IJARI LAKAMAPUR,
        TQ. & DIST.HAVERI - 581 110.

2.      PRAKASH
        S/O DYAMANNA KARJAGI,
        AGE:29 YEARS, OCC:COOLI,
        NOW AT R/O IJARI LAKAMAPUR,
        TQ. & DIST.HAVERI - 581 110.

3.      VASANT
        S/O DYAMANNA KARJAGI,
        AGE:25 YEARS, OCC:COOLIE,
        NOW AT R/O IJARI LAKAMAPUR,
        TQ. & DIST.HAVERI - 581 110.

4.      GEETA KOM NARASIMHA HAVANUR,
        AGE:24 YEARS, OCC:HOUSEHOLD WORK,
        NOW AT R/O IJARI LAKAMAPUR,
        TQ. & DIST.HAVERI - 581 110.
                                            ...APPELLANTS
(BY SRI N.P.VIVEKMEHTA, ADVOCATE)

AND:

1.      RAMANNA @ RAMESH
        S/O HANUMANTHAPPA BANDIWADDAR,
        AGE:48 YEARS, OCC:AGRICULTURE,
        R/O IJARI LAKAMAPUR,
                               2




      TQ. & DIST.HAVERI - 581 110.

2.    SMT.CHANNAVVA KOM HANUMANTHAPPA
      BANDI WADDER,
      AGE:74 YEARS, OCC:HOUSEHOLD WORK,
      R/O IJARI LAKAMAPUR,
      TQ. & DIST.HAVERI - 581 110.
                                      ... RESPONDENTS

(SRI S.D.BABLADI, ADVOCATE)


      THIS MSA IS FILED UNDER ORDER 43 RULE (U) OF CODE
OF CIVIL PROCEDURE.


      THIS MSA POSTED FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                         JUDGMENT

Sri.N.P.Vivekmehta, learned counsel for appellants

and Sri.S.D.Babladi, learned counsel for respondents 1 and

2, have appeared in-person.

2. For the sake of convenience, the parties are

referred to as per their rankings before the Trial Court.

3. The facts are stated as under:-

The plaintiffs filed a suit for partition and separate

possession of their 1/4th share in the suit schedule

properties. The defendants appeared through their counsel

and filed written statement. They denied the plaint

averments. The first defendant contended that his mother

has executed Will in his favor on 02.07.1993. Among other

grounds, they prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court has

framed the following issues:

1. Whether the plaintiffs prove that, they are having right over the suit properties?

2. Whether the plaintiffs prove that, suit properties are liable for division amongst plaintiffs and defendants?

3. Whether the plaintiffs are entitled for relief of partition?

4. What order or decree?

Additional Issues:

Whether the defendant No.1 proves that Smt.Ramavva during her lifetime has executed Will in his favour as contended in para-No.6 of the written statement?

To substantiate the claim, plaintiff-1 was examined as

PW-1 and produced twenty-three documents which were

marked as Exs.P.1 to Ex.P.23. On the other hand,

defendant-1 got examined himself as DW1 and two other

witnesses as DWs-2 and 3 and they produced eight

documents which were marked as Ex.D.1 to Ex.D.8 and also

Exs.D8(a) to 8(c).

On the trial of action, the suit came to be decreed.

Aggrieved by the judgment and decree, the defendants

preferred regular appeal before the First Appellate Court in

R.A.No.37/2015.The First Appellate Court allowed the

appeal and remanded the case to the trial Court. Hence,

this Miscellaneous Second Appeal is filed on various grounds

as set out in the memorandum of appeal.

4. Sri.N.P.Vivekmehta, learned counsel for

appellants submits that the order of the First Appellate

Court is contrary to the material evidence on record and

law.

Next, he submitted that the trial Court framed issues

and has given findings on all issues considering evidence on

record.

A further submission was made that the First

Appellate Court has erred in remanding the case to the trial

Court without considering the case on merits.

It is also submitted that the First Appellate Court has

not reversed any findings of the trial Court. Under these

circumstances, the order of remand is not sustainable in

law.

Counsel vehemently submitted that the facts and

circumstances of the case do not give rise to any grounds to

remand case. The First Appellate Court ought to have

considered the appeal on merits and disposed of the same

in accordance with law.

Lastly, he submitted that viewed from any angle, the

order of the First Appellate Court lacks judicial reasoning.

Accordingly, he submitted that the appeal may be allowed.

5. Sri.S.D.Babaladi, learned counsel for

respondents justified the order passed by the First Appellate

Court.

Counsel vehemently submitted that the First Appellate

Court referred to the material on record and rightly

remanded the case.

Lastly, he submitted that appellants have not made

out any good grounds to set aside the order of remand.

Accordingly, he submitted that the appeal may be

dismissed.

6. Heard the contentions urged on behalf of parties

and perused the records with care.

The main ground of challenge is non-compliance of

mandatory provision i.e., Order 41 Rule 31 of CPC. Hence,

what is required to be answered is whether there has been

substantial compliance of above said mandatory provision.

For brevity, the provision is referred and which reads

as under:-

"Order 41 Rule 31.Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state -

             (a)     the points for determination;
             (b)     the decision thereon;
             (c)     the reasons for the decision; and
             (d)     where the decree appealed from is
                     reversed or varied, the relief to
                     which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

A bare reading of the above said provision makes it

clear that the compliance of provision is mandatory. It is

needless to say that it is not only a mere compliance but

substantial compliance.

The law imposes upon the Court of appeal the

imperative duty and obligation of giving an adequate and

satisfactory judgment as is required by law and it is the

duty of the Court to explain its reasons for so doing more

especially when the Court of first instance has gone so fully

into the facts and the reasons for the conclusions arrived at.

Order 20 Rule 4(2) read with Order 41 Rule 31 of the

Code requires that judgment shall contain concise

statement of the case, the points for determination, the

decisions thereon, and the reasons. The First Appellate

Court shall state the points for determination, the decision

thereon and the reasons for decision. Non- observance of

the requirement of Order 41 Rule 31 leads to infirmity in the

judgment of the First Appellate Court.

Bearing these principles in mind, let me consider what

facts I have here.

The suit is one for partition and separate possession.

The first defendant contended that there is a Will in his

favor. The trial Court taking into consideration of the

material propositions put forth by the plaintiffs and

defendants framed proper and necessary issues. The parties

to the lis went to trial fully knowing the rival case and led all

the evidence not only in support of their contentions but in

refutation of those of the other side. After full-fledged trial,

the trial in extenso referred to the material on record and

concluded that plaintiffs and the first defendant are entitled

for 1/4th share and the second defendant is entitled for 2/4th

share in the suit schedule properties.

The defendants challenged the judgment and decree

of the trial Court by filing an appeal before the First

Appellate Court in R.A.No. 37/2015. The Court passed the

order on 21.04.2017 and remitted the case to the trial

Court.

While addressing argument, learned counsel

Sri.Vivekmehta strenuously urged that the remitting the

case to the trial Court to frame issue with regard to

limitation is unsustainable in law.

I have heard the submission with utmost care.

As already noted above, the trial Court after

considering the material propositions put forth by plaintiffs

and defendants framed proper and necessary issues. The

parties led evidence and the judgment was delivered. On

appeal, the First Appellate Court remands the matter

directing the trial Court to frame issue with regard to

limitation. I have perused the order carefully.

I may extract the operative portion of the order.

ORDER "Appeal is allowed and matter is remanded back to trial court with a direction to dispose of the case according to law by framing issues with regard to time barred suit as contended by the defendant in their W.S. and ample opportunity is to be given to both parties in that regard.

Send LCR along with copy of this order to said court.

Both parties are directed to appear before said court on 24.06.2017".

The material propositions put forth by plaintiffs and

defendants were in detail considered by the trial Court. It is

needless to say that the omission to frame a proper issue/s

may sometimes cause prejudice to parties resulting in

failure to lead evidence on the point. The law is well settled

that mere omission to frame an issue is not fatal to the trial

of a suit, unless the omission has affected the disposal of

the case on merits.

In the instant, case neither of parties pleaded that

non-framing of issue with regard to limitation has

prejudiced their rights resulting in failure to lead evidence

on the point. The non-framing of issue has not caused

prejudice either to the plaintiffs or to the defendants. I am

unable to accept the reasons accorded by the First Appellate

Court in remanding the matter.

The law is well settled by the Apex Court in

NEDUNURI KAMESWARAMMA VS SAMPATI SUBBA

RAO reported in AIR 1963 SC 884 wherein their Lordships

held at para-6 as under. The relevant portion of para-6

reads as under:-

"(6)................ since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion".

It is perhaps well to observe that both the plaintiffs

and defendants went to trial fully knowing the rival case and

led evidence. The parties are not prejudiced for non-framing

of an issue regarding question of limitation.

In the present case, both plaintiffs and defendants did

not claim that they had any further evidence to offer. I am,

therefore, of the opinion that the reasons assigned for the

remand is not acceptable.

I can say only this much that where the parties went

to trial fully knowing the rival case and led all the evidence

not only in support of their contentions but in refutation of

those of the other side, it cannot be said that the absence of

an issue was fatal which vitiates proceedings. There is no

need for a remand, as the evidence led in the suit is

sufficient to reach the right conclusion and neither party

claimed that it had any further evidence to offer.

It is further relevant to note that when no prejudice

caused to any other party by non-framing of issue the case

need not be remanded to trial Court for framing the issue.

Further, it is significant to note that the First Appellate

Court has not properly considered the facts of the case. The

points for consideration are also not framed in compliance

with Order 41 Rule 31 of the Code. Though the First

Appellate Court formulated points for consideration but the

conclusion and the findings are not supported by reasons.

There is no clarity in the order. One cannot make out

whether the findings of the trial Court are confirmed or

reversed.

It is perhaps well to observe that the points which

must arise for determination by a Court of first appeal must

cover all important questions involved in the case and they

should not be general and vague. It is incumbent on the

final Court of fact while reversing decision to meet the

reasoning of the trial Court and indicate it's own reason for

the conclusions.

It is needless to say that it is the primary duty of the

Appellate Court while reversing the findings of the trial

Court to consider the reasons given by the trial Court and

those reasons must also be reversed.

As already noted above, the trial court has framed

issues and has given findings on all issues considering the

evidence on record. However, the First Appellate Court

remanded the case stating that the defendants in their

written statement contended that the suit is time barred

hence, the trial court has failed to frame the very important

issue.

No doubt, non-compliance with the provisions may

not vitiate the judgment and make it wholly void, and may

be ignored if there has been substantial compliance with it.

But in the instant case, the First Appellate Court has not

considered the facts of the case and failed to re-appreciate

the entire evidence on record.

To conclude, I can say only this much that where

parties went to trial fully knowing the rival case and led all

the evidence not only in support of their contentions but in

refutation of those of the other side, it cannot be said that

the absence of an issue was fatal to the case or that there

was mis-trial which vitiates proceedings. It is needless to

say that there is no need for a remit, as the evidence which

has been led in the case is sufficient to reach the right

conclusion and neither party claimed that it had any further

evidence to offer.

If we carefully read the judgment of the First

Appellate Court, it cannot be said that Court has expressed

general agreement without recording the whole evidence.

The judgment is not well discussed. Hence, it is liable

to be set-aside. On facts and in all the circumstances of the

case, the remittance is not justified. For the reasons stated

above, I have no hesitation to say that the order of remand

is unjust.

The substantial questions of law are answered

accordingly.

7. The appeal is allowed. The judgment and

decree dated 21.04.2017 passed by the Court of I

Additional District and Sessions Judge at Haveri in

R.A.No.37/2015 is set aside. The First Appellate Court is

hereby directed to strictly adhere to the provisions of Order

41 Rule 31 of CPC and dispose of the appeal, in accordance

with law.

Parties to bear their own costs.

Sd/-

JUDGE

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