Shri. K.V Surendra @ M.V.S/O K.M. ... vs M.P. Praveen S/O M. Prakash
2022 Latest Caselaw 1271 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 28TH DAY OF JANUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


                M.S.A.NO.100060 OF 2018 (RO)

BETWEEN

1.    SHRI. K.V SURENDRA @ M.V. SURENDRA
      S/O K.M. VEERABHADRAIAH
      AGE: 51 YEARS, OCC: BUSINESS,
      R/O: NEAR VENKATESHWAR TEMPLE,
      AMARAVATHI, HOSAPETE,
      DIST: BALLARI-583211.

      REPRESENTED BY HIS
      POWER OF ATTORNEY HOLDER
      SHRI.S.BASAVARAJ S/O SALI SHARBAIAH,
      AGE: 44 YEARS, OCC: MERCHANT,
      R/O: GANDHI COLONY, HOSAPETE,
      DIST: BALLARI-583201.

2.    SRI.S. BASAVARAJ S/O SALI SHARBAIAH,
      AGE: 44 YEARS, OCC: MERCHANT,
      R/O: GANDHI COLONY, HOSAPETE,
      DIST: BALLARI-583201.
                                               ...APPELLANTS

(BY SRI. LAXMAN T MANTAGANI AND
SRI. NAGARAJ T. APPANNAVAR, ADVOCATES)

AND
M. P. PRAVEEN S/O M. PRAKASH
AGE: 34 YEARS, OCC: MERCHANT,
R/O: PATEL NAGAR,
OPP SHREE VENKATESHWAR AUTO MOBILES,
                              2




HOSAPETE, DIST: BALLARI-583201.
                                             ...RESPONDENT

(BY SRI. GOPALKRISHNA R KOLLI, ADVOCATE)

     THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) READ
WITH SECTION 104 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 01.08.2018 PASSED IN R.A.NO.20/2017 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HOSAPETE, ALLOWING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DATED 03.02.2017
PASSED IN O.S.NO.2/2014 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE,
PARTLY DECREEING THE SUIT FILED FOR EJECTMENT.


     THIS MSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

The captioned miscellaneous second appeal is filed

by the plaintiff questioning the judgment and decree

passed by the First Appellate Court in R.A.No.20/2017

remanding the matter to the Trial Court for fresh

consideration.

2. The facts leading to the case are that the

appellant-plaintiff filed a suit seeking recovery of arrears

of rent to the tune of Rs.3,60,000/-. The appellant-

plaintiff contended that he has purchased the suit

schedule property from respondent-defendant under

registered sale deed dated 10.05.2010. The appellant-

plaintiff claimed that though the respondent-defendant

sold the suit schedule property, he requested the

appellant-plaintiff for some time to vacate the suit

property and to let out the premises on rent for a period

of 11 months to enable him to perform his sister's

marriage and the respondent-defendant agreed to pay

the rent at the rate of Rs.10,000/- per month. The

present suit is filed seeking arrears of rent by alleging

that the respondent-defendant is chronic defaulter and

has failed to pay the total rent of Rs.3,60,000/- from

10.05.2010 till the date of filing of the present suit. On

receipt of summons, respondent-defendant contested the

proceedings and stoutly denied the entire averments

made in the plaint. The respondent-defendant contended

that he had no intention to sell the suit premises and the

sale deed dated 10.05.2010 is a nominal sale deed

executed towards security for loan borrowed by the

respondent-defendant from the appellant-plaintiff. At

paragraph 10 of the written statement, the respondent-

defendant has specifically contended that the present suit

is hit by provisions of Order II Rule 2 of CPC and

therefore, prayed for dismissal of the suit. The Trial Court

having appreciated the oral and documentary evidence,

answered issue No.1 in the affirmative by holding that

the appellant-plaintiff has proved that the respondent-

defendant is a lessee and has committed default in

payment of rent and therefore, by answering issue No.3

held that the appellant-plaintiff is entitled to arrears of

rent. Respondent-Defendant feeling aggrieved, preferred

an appeal before the First Appellate Court. The First

Appellate Court, on appreciation of oral and documentary

evidence, found that the present appellant-plaintiff had

filed a suit for ejectment in O.S.No.339/2012 and

therefore, the Appellate Court was of the view that when

a specific plea is raised by the respondent-defendant in

regard to maintainability of the present suit and when

provisions of Order II Rule 2 are pressed in by

respondent-defendant, it was the bounden duty of the

Trial Court to frame an issue in that regard. The First

Appellate Court was also of the view that since

respondent-defendant has seriously disputed the rent

agreement dated 10.05.2010, the Trial Court ought to

have framed an issue in that regard also. On these set of

reasons, the First Appellate Court has set aside the

judgment of the Trial Court and by framing two additional

issues, has remitted the matter to the Trial Court for

fresh consideration. It is this remand order passed by the

First Appellate Court, which is under challenge by the

appellant-plaintiff.

3. The learned counsel appearing for the

appellant-plaintiff reiterating the grounds urged in the

appeal memo would specifically place reliance on the

judgment rendered by the Co-ordinate Bench of this

Court in the case of Shanthaveerappa vs K.N.

Janardhanachari1. By placing reliance on the said

judgment, he would submit to this court that the First

Appellate Court was not justified in setting aside the

judgment of the Trial Court. He would submit to this

Court that it is well within the discretion and jurisdiction

of the First Appellate Court to frame appropriate issues

and consequently ought to have relegated the parties to

lead evidence before the Appellate Court. Therefore, on

these set of grounds, he would submit to this Court that

the remand order is contrary to the provisions of Order

ILR 2007 KAR 1127

XLI Rule 23(a) of CPC and also to the dictum laid down

by this Court in the judgment cited supra.

4. Heard the learned counsel for appellant-

plaintiff and the learned counsel appearing for the

respondent-defendant. Perused the remand order under

challenge.

5. The First Appellate Court has virtually ordered

for de novo trial on the premise that the Trial Court has

not framed necessary issues arising out of the pleadings.

The judgment cited supra by the learned counsel

appearing for appellant-plaintiff is squarely applicable to

the present case on hand. The Co-ordinate Bench of this

Court in the judgment cited supra at paragraph 11 has

held that it is well within the powers of the Appellate

Court 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. The Co-ordinate Bench of this Court was of the

view that in addition to the power of trial Court, The

Appellate Court has been vested with the power of

remand. In the judgment cited supra, the Court was of

the view that 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. The power of

remand should be sparingly exercised. The endeavor

should be to dispose of the case finally by the first

Appellate Court itself. This Court is of the view that the

Appellate Court must make an attempt and find out

whether it can dispose the case itself under Order XLI

Rule 24 to 27 of CPC. If the ratio laid down by the co-

ordinate bench of this Court is examined, then this Court

is of the view that the First Appellate Court has not

assigned any reasons while remanding the matter to the

Trial Court. Rule 2 of Order II does not bar per se

subsequent suit, brought on different cause of action. It

only purports to bar suits for claims omitted from former

suits. Therefore, if there is a material on record, the First

Appellate Court has to examine as to whether the

provisions of Order II Rule 2 of CPC are applicable to the

present case on hand. When there is voluminous

evidence let in by the parties, the Appellate Court has to

absolutely make an endeavor to find out as to whether

any further evidence is actually needed even if some

additional issues are framed by the Trial Court. It is only

in exceptional cases where there is substantial error in

procedure adopted by the Trial Court, which cannot be

rectified and the Appellate Court cannot render complete

and effective adjudication, in such cases Appellate Court

has to set aside the judgment and decree of the Trial

Court and remand for de novo trial, but this exercise

cannot be done in routine manner in all cases. The

principles laid down by the Co-ordinate Bench of this

Court in the judgment cited supra are squarely applicable

to the present case on hand. Even if Appellate Court was

of the view that additional issues would arise out of the

pleadings and having framed additional issues, ought to

have call upon the parties to lead evidence in regard to

issues framed and therefore, it is in this background, this

Court feels that the blanket remand order for de novo

trial was unwarranted at the hands of the First Appellate

Court. For the foregoing reasons, I pass the following:

ORDER

The Miscellaneous First Appeal is allowed.

The Judgment and decree dated 01.08.2018 passed by the Principal Senior Civil Judge and JMFC, Hosapete in R.A.No20/2017 remanding the order of the Trial Court is set aside.

The First Appellate Court shall formulate additional issues and shall take recourse to the provisions of Rule 24 to 27 of Order XLI and permit the parties to lead evidence on additional issues framed therein and thereafter decide the case on merits in accordance with law.

Since both the parties are represented by their respective counsel, they are directed to appear before the First Appellate Court on 07.03.2022 without expecting notice from the First Appellate Court.

In view of disposal of this appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

SD/-

JUDGE YAN