Sri.Basavarajappa S/O ... vs Tippusab S/O Gousesab
2022 Latest Caselaw 667 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 14TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     MSA.NO.100297/2015
BETWEEN

SRI.BASAVARAJAPPA
S/O SHANKARAPPA DESAI,
AGE:69 YEARS
OCC:RTD. SENIOR NON-MEDICAL SUPERVISOR
R/O:GANGAVATHI-583227,
DIST:KOPPAL

                                                 ... APPELLANT

(BY SRI.S.H.MITTALKOD & SRI.VINAY S.KOUJALAGI, ADVS.)

AND


1.    TIPPUSAB S/O GOUSESAB
      AGE:56 YEARS, OCC:FITTER

2.    RAHEMANSAB S/O HUCHUSAB
      AGE:33 YEARS, OCC:TAILOR

3.    SMT.KASHIMBEE D/O HUCHUSAB
      AGE:49 YEARS. OCC:HOUSEHOLD

4.    SMT.BHEENAVVA W/O KARIYAPPA @ CHANNAPPA
      AGE:48 YEARS, OCC:COOLIE

5.    SMT.ZAINABEE W/O HUCHUSAB
      AGE:65 YEARS, OCC:HOUSEHOLD
                               2




6.   SMT.SHAMEEDABEE W/O JILANSAB
     AGE:63 YEARS, OCC:COOLIE


7.   SMT.MUNNIBEGUM D/O HUCHUSAB
     AGE:41 YEARS, OCC:COOLIE

8.   SARAMMA D/O GANGAPPA NAYAK
     AGE:58 YEARS, OCC:COOLIE

9.   MAHABOOB TAILOR S/O NOT KNOWN
     AGE:41 YEARS, OCC:TAILOR

     ALL ARE R/O:VIJAYACHANDRASHEKHARA OIL MILL,
     MUJAWAR CAMP, KOPPAL ROAD,
     GANGAVATHI-583227, DIST:KOPPAL

                                             ... RESPONDENTS

(BY SRI.MRUTYUNJAYA S.HALLIKERI, ADV. FOR R1 TO R7,
    NOTICE TO R8 & R9 DISPENSED WITH)


     THIS APPEAL IS FILED UNDER 104 R/W ORDER 42 RUE 1 OF

CPC PRAYING TO SET ASIDE THE JUDGMENT AN DECREE DATED

19.11.2015 PASSED BY THE SENIOR CIVIL JUDGE GANGAVATHI IN

R.A.NO.35/2013 IN REMANDING THE MATTER WITH A DIRECTION TO

DISPOSE OF THE SUIT AFRESH PROVIDING OPPORTUNITY TO BOTH

THE PARTIES.


     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                               3




                        JUDGMENT

The captioned appeal is filed by the plaintiff

questioning remand order passed by the first appellate

court in R.A.No.35/2013.

2. The appellant/plaintiff filed a suit for declaration

and injunction in O.S.No.92/2002 contending that he is the

absolute owner of the suit schedule property and that

respondents/defendants trespassed into the suit land and

have illegally put up huts by encroaching the land. The

appellant/plaintiff in support of his contention examined

himself as P.W.1 and examined two independent witnesses

as P.Ws.2 and 3 and relied on documentary evidence vide

Exs.P1 to P18. Respondents/defendants examined two

witnesses as D.Ws.1 and 2 and relied on documentary

evidence vide Exs.D1 to D15. The trial court having

assessed oral and documentary evidence answered issue

Nos.1 to 3 in the affirmative and recorded a finding that

that appellant/plaintiff has succeeded in establishing his

right and title and thereby proceeded to decree the suit

declaring that appellant/plaintiff as the absolute owner of

the suit schedule property and consequently held that

defendants have put up huts in the suit schedule property

by illegally trespassing into the suit property and directed

the respondents/defendants to handover the vacant

possession of the suit property within two months from the

date of decree.

3. Respondents/defendants being aggrieved by the

judgment and decree of the trial court preferred an appeal

before the first appellate court in R.A.No.35/2013. The

respondents/defendants specifically contended before the

first appellate court that appellant/plaintiff has not

produced any layout to prove that suit property is situated

beyond the slum declared area. The grievance of the

respondents/defendants before the first appellate court

was that they are residing in the suit plots since 42-45

years and therefore, they contended that the trial court has

not properly appreciated the evidence on record. A specific

contention was raised before the court that though

application in I.A.No.8 was filed under Order 26 Rule 9 of

CPC, the said application is rejected by the first appellate

court on the ground that, it is filed at a belated stage.

During the pendency of the appeal, the

respondents/defendants filed an application in I.A.No.2

seeking leave of the court to produce additional documents

by way of additional evidence. The first appellate court on

re-appreciation of oral and documentary evidence

remanded the matter to the trial court. The relevant

paragraphs 32, 33 and 34, which form the basis for the

appellate court to remand the matter are culled out

hereunder:

"32. The available best evidence to show that suit property is situating far away from slum declared area is approved layout of Sy.No.27/3 in which suit property is situating. Admittedly, the plaintiff has not produced the same. For this reason,

the local inspection by competent person is necessary to elucidate the matter in controversy.

33. These facts are not properly considered by the trial court and trial court has wrongly rejected the I.A.No.8 on technical ground without considering the facts and circumstances of the case. The materials placed before the court by the parties are not sufficient for final adjudication of the matter. There are no evidence to show exact location of suit property. Hence, this court is of the opinion that in the interest of justice it is necessary to remand the case for further evidence of defendants & for fresh disposal. It is necessary to give opportunity to defendants to get done local inspection of suit schedule property to verify whether suit schedule property is situating within the slum declared area or not. Hence, this court is of the opinion that the judgment and decree passed by the trial court and order passed on I.A.No.8 are illegal, perverse, capricious. As such, judgment and decree and I.A.No.8 passed by the trial court is liable to be set aside.

34. As far as prayer of appellants for production of additional issue is concerned, the defendants have sought permission to produce Aakarband and record of rights of Sy.No.27/1 and

27/3 to show the total extent of Sy.No.27. It is argued on behalf of the appellants that to prove the location of slum declared area, these documents are necessary. Therefore, this court is of the opinion that the production of additional evidence to prove the total extent of Sy.No.27 is necessary to verify the actual location of slum declared area and suit schedule property. It is further opined that it is necessary to permit the evidence to lead further evidence to establish their case. Hence, it is opined that it is just and necessary to remand the case for further evidence of defendants. Hence, point no.1 and 3 are answered in affirmative and point No.2 is answered in negative."

4. On perusal of the reasons assigned by the first

appellate court, this court would find that the first appellate

court has erred in casually remanding the matter.

5. The learned counsel for the appellant has placed

reliance on the judgment rendered by the Hon'ble Apex

Court in the case of Shivakumar and Others Vs

Sharanabasappa and Others1. Paragraph 25.4 would be

AIR 2020 SC 3102

relevant to decide the lis between the parties and the same

is culled out hereunder:

"25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case."

6. The Hon'ble Apex Court in the judgment cited

supra has held that the order of remand cannot be passed

in a routine manner. The Hon'ble Apex Court was of the

view that an unwarranted order of remand merely

elongates the life of the litigation without serving the cause

of justice. If the principles laid down by the Hon'ble Apex

Court are examined in the light of the present facts and

circumstances of the case, this court would find that the

first appellate court has ventured into remanding the

matter only on the ground that the trial court erred in not

allowing the parties to have local inspection. Therefore, the

first appellate court was of the view that the order passed

by the trial court on I.A.No.8 in rejecting the application

suffers from material irregularity. The first appellate court

was swayed away by the production of additional

documents. Though first appellate court has referred all

these additional evidence, however, I would find that there

is absolutely no application of mind. In the additional

evidence, it is not forthcoming from the relevant paragraph

as to how this additional evidence are absolutely necessary

for effective adjudication of the lis between the parties. The

first appellate court has also not examined whether

ingredients of Rule 27 of Order 41 are made out or whether

respondents/defendants intend to place these additional

documents by way of additional evidence. No doubt first

appellate court has discretion to allow the production of

additional evidence but that discretion is circumscribed by

the limitations specified in Rule 27. Without examining

these two relevant aspects, the first appellate court instead

of discharging its duty as first appellate court has

remanded the matter. This remand is not inconsonance

with the principles laid down by the Hon'ble Apex Court in

the judgment cited supra.

7. Section 107(2) of CPC does invest the Appellate

Court with some powers that are conferred on Court on

original jurisdiction. It is a trite law that it is a bounden

duty of the Appellate Court to see whether the evidence

taken as a whole can reasonably justify the conclusion

which the Trial Court arrived at or whether there is an

element of improbability arising through a number of

circumstances which in the opinion of the Court outweighs

such finding.

8. Having given my anxious consideration to the

order under challenge, I am of the view that, in the facts

and circumstances of the case, the remand order passed

by the first appellate court is unwarranted and it is not

sustainable. For the forgoing reasons, I proceed to pass the

following:

ORDER

The appeal is allowed.

The order dated 19.11.2015 passed by the Senior

Civil Judge, Gangavathi in R.A.No.35/2013 is set aside and

the matter is remanded back to the first appellate court.

The first appellate court shall adhere to the averments

made in the affidavit in I.A.No.8 as well as I.A.No.2, which

were filed before the first appellate court. The first

appellate court is required to independently assess these

two applications and then adopt the appropriate recourse

that is available to the first appellate court under Order 41

Rule 30 and 31 of CPC.

The parties shall appear before the first appellate

court on 14.03.2022.

Sd/-

JUDGE MBS/-