Karnataka High Court

Sri. G. Chinnappa vs Sri. Muniswamy on 26 November, 2021

Bench: R. Nataraj

                           1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF NOVEMBER, 2021

                        BEFORE

          THE HON'BLE MR. JUSTICE R. NATARAJ

               MSA NO.99 OF 2016 (RO)

BETWEEN:

SRI G CHINNAPPA SON OF GANGAPPA
AGED ABOUT 63 YEARS
RESIDING AT DYAPASANDRA VILLAGE
KASABA HOBLI, MALUR TALUK
KOLAR DISTRICT - 563 130.
                                         ...APPELLANT
(BY SRI. C SHANKAR REDDY , ADVOCATE)

AND:

SRI. MUNISWAMY
SINCE DEAD BY L.R'S

1(a) SMT. CHOWDAMMA
     WIFE OF LATE MUNISWAMY
     AGED ABOUT 70 YEARS

1(b) SMT. LAKSHMAMMA
     DAUGHTER OF LATE MUNISWAMY
     AGED ABOUT 42 YEARS

       RESPONDENT NO.1(A) AND 1(B)
       ARE RESIDING AT:
       DYAPASANDRA VILLAGE
       MALUR POST, KASABA HOBLI
       MALUR TALUK, KOLAR
       DISTRICT - 563 130.
                         2




1(c) SMT. YASHODAMMA
     DAUGHTER OF LATE MUNISWAMY
     AGED ABOUT 30 YEARS
     RESIDING AT RAMENAHALLI VILLAGE
     SHIVARAPATNA POST
     KASABA HOBLI, MALUR TALUK
     KOLAR DISTRICT - 563 130.

1(d) SRI RAMANJI SON OF LATE MUNISWAMY
     AGED ABOUT 40 YEARS
     PRESENTLY DOING BUSINESS
     AND RESIDING AT
     CHOWDESWARI POULTRY
     (CHICKEN) CENTRE, R.M.V STAGE
     BASAVESHWARA LAYOUT
     NAGASHETTIHALLI
     BENGALURU - 560 094.

2.   SRI M. ANJANAPPA
     S/O ENNANGUR MUNISWAMY
     RESIDING AT DYAPASANDRA
     VILLAGE, KASABA HOBLI
     MALUR TALUK, KOLAR
     DISTRICT - 563 130.

3.   THE ADMINISTRATOR
     DYAPASANDRA PANCHAYATH
     DYAPASANDRA VILLAGE
     MALUR TALUK, KOLAR
     DISTRICT - 563 130.
4.   THE SECRETARY
     DYAPASANDRA PANCHAYATH
     DYAPASANDRA VILLAGE
     MALUR TALUK, KOLAR
     DISTRICT - 563 130.
                                   ...RESPONDENTS
(BY SRI. ADARSH KUMAR GOWDA ADVOCATE)
 FOR SRI R.S. RAVI, ADV. FOR R1(A-D)
      R2 - R4 - SERVED)
                                        3




 THIS M.S.A. IS FILED UNDER ORDER 43 RULE (1)(U) R/W
SEC.151 AND ORDER 41 RULE 1 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 08.09.2016 PASSED IN
RA NO.201/1997 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, MALUR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
02.09.1997 PASSED IN OS NO.102/1985 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) MALUR, REMITTED BACK THE
MATTER TO THE TRIAL COURT TO DISPOSE THE MATTER
IN ACCORDANCE WITH LAW.

     THIS M.S.A. COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                               JUDGMENT

This appeal is filed by the plaintiff in

O.S.No.102/1985 challenging the judgment and decree

dated 08.09.2016 passed by the Senior Civil Judge &

JMFC, Malur in R.A.No.201/1997 (henceforth referred to as

the 'First Appellate Court').

2. A suit in O.S.No.102/1985 was filed for

declaration and perpetual injunction in respect of a site

measuring 30x40 at Janata Colony, Dyapasandra. The said

suit after contest was decreed in terms of judgment and

decree dated 02.09.1997. The defendant No.1 filed

R.A.No.201/1997 while defendant Nos.2 to 4 filed RA

No.145/1997. Both the appeals were dismissed by the First

Appellate Court. The defendant No.1 thereafter challenged

the decree in RSA No.105/2008 before this Court. This

Court noticed that First Appellate Court had not considered

the application filed by defendant No.1 under Order XLI

Rule 27 CPC and therefore remit the case back to the First

Appellate Court for consideration in accordance with law.

3. After such remand, defendant No.1 filed yet

another application under Order XLI Rule 27 CPC to place

on record additional documentary evidence. The First

Appellate Court after holding that these two applications

deserved consideration, set aside the judgment of the Trial

Court and remitted the case back to the Trial Court for

consideration in accordance with law. It also directed the

Trial Court to provide opportunity to the parties to lead

further evidence.

4. Being aggrieved by the aforesaid judgment of

the First Appellate Court, the present appeal is filed.

5. Learned counsel for appellant/plaintiff

contended that the First Appellate Court committed an

error in not noticing the fact that defendant No.1 had failed

to furnish reasons for not producing these documents at

the earliest point in time before the Trial Court. He also

contended that the First Appellate Court ought not to have

remitted the case to the Trial Court by setting aside a well

considered judgment of the Trial Court. He invited the

attention of this Court to the procedure contemplated

under Section XLI Rule 28 CPC as well as judgement of

this Court in Shanthaveerappa vs K N Janardhanachari

reported in ILR 2007 KAR 1127. He submitted that the

First Appellate Court ought to have framed an issue based

on the documents sought to be produced by I.A.Nos.3 and

4 and it must have directed the Trial Court to record its

findings on the said additional documentary evidence. He

therefore prayed that the impugned judgment and decree

passed by the First Appellate Court be set aside.

6. Learned counsel for defendant No.1 on the

other hand submitted that the documents produced along

with I.A.Nos.3 and 4 were voluminous and required oral

evidence to be recorded. He also submitted that these

documents were relevant for the purpose of determining

whether the plaintiff is the owner of the property or not.

He further submitted that defendant No.1 may have to

summon the officials of Panchayath to establish the

documents that were sought to be produced along with the

application. Therefore, he supported the judgment of the

First Appellate Court remitting the case back to the Trial

Court for consideration in accordance with law.

7. I have considered the submissions made by

the learned counsel for the parties.

8. As stated, I.A.No.3 was filed under Order XLI

Rule 27 of CPC, where it was claimed that defendant No.1

could not procure and produce the documents due to his

ill-health. The additional documentary evidence sought to

be produced along with I.A.No.3 were:

           i)     House license dated 15.11.1996

           ii)    Deposition       that     were     marked     in

                  O.S.No.80/1980

iii) Copy of resolution dated 22.01.1974

iv) Certified copy of endorsement

dtd.16.09.2000 issued by the Secretary

v) Mutation register extract regarding

issuance of Hakku pathra in the name of

Byrappa dated 30.04.1979 and mutation

person etc.,

9. In so far I.A.No.4 is concerned, defendant No.1

attempted to produce the following documents:

i) Certified copy of order passed by the

Executive officer, Taluk Panchayath,

Malur.

           ii)    Meeting      proceedings          book    dated

                  26.11.1978

iii) Photographs as well as RTC pertaining to

Sy.No.10, 11 & 68 etc.,

10. A perusal of aforesaid documents would

indicate that the following issue arose that required

consideration of the Trial Court. "Whether the defendant

No.1 proves that the suit property was not granted to the

plaintiff?" Under the circumstances, the First Appellate

Court ought not to have disturbed a well reasoned

judgment of the Trial Court but must have explored the

possibility of recording further evidence of the parties on

the documents sought to be produced as additional

documentary evidence and thereafter the First Appellate

Court must have proceeded. This would avoid wastage of

judicial time. A Co-ordinate Bench of this Court in

Shanthaveerappa's case (Supra) in paragraph No.11 and

12 held as hereunder:

"11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of

additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court.

Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An

order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to.

When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a

fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice.

12. Unfortunately, the first Appellate Courts are not appreciating these statutory provisions in proper perspective. Though the first Appellate Courts are vested with this unlimited power, greater the power, greater should be the care and Page 0730 caution which should be exercised by the Appellate Court in exercise of such power. Especially, the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first Appellate Court to decide the case on merits finally. When the trial Courts are over burdened with the cases, the first Appellate Courts which are better placed and presided over by Judges with greater

experience, should take upon themselves the responsibility of recording evidence and decide the case on merits, thus shortening the length of litigation. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. Therefore, it is impressed upon the first Appellate Courts, that they would be doing a great service in the course of fight against delay in disposal of cases, by accepting the challenge, exercise their appellate power judiciously, receive and record additional evidence and decide the cases finally. They should avoid this temptation of remand on some pretext or other. They should demonstrate their resolve to shoulder responsibility and commitment in rendering justice to the litigant who is knocking at the door of temple of justice patiently in anticipation of a just decision. Judges should decide the lis. This would be one of the ways of not only reducing the delay in disposal of cases, but also avoiding docket explosion, within the existing legal frame work".

11. In view of the above, the judgment and decree

passed by the First Appellate Court in R.A.No.201/1997

deserves to be set aside.

12. Consequently, this appeal is allowed and

judgment and decree passed by the First Appellate Court

in R.A.No.201/1997 is set aside and R.A.no.201/1997 is

restored. The First Appellate Court is directed to remit IA 3

& 4 along with the documents to the Trial Court, who shall

record evidence of the defendant No.1 strictly on the

documents and thereafter record its finding on the issue

framed by this Court. The Trial Court shall forward its

finding to the First Appellate Court, who may thereafter