Mr Ivan D Souza vs Smt Nancy D Souza
2022 Latest Caselaw 9567 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 24TH DAY OF JUNE, 2022

                           BEFORE

          THE HON'BLE MS. JUSTICE JYOTI MULIMANI

      MISCELLANEOUS SECOND APPEAL NO.4 OF 2019


BETWEEN :

1.   MR.IVAN D'SOUZA
     S/0. LATE GULLU D'SOUZA &
     VERONICA D'SOUZA
     AGED ABOUT 66 YEARS
     RESIDING AT ADAM KUDRU
     BOLLA HOUSE, PERMANNUR POST
     JAPPINAMOGARU, MANGALURU -574231

2.   MRS.PRECILLA D'SOUZA
     D/O. LATE GULLU D'SOUZA
     & VERIONCIA D'SOUZA
     AGED ABOUT 66 YEARS
     RESIDING AT ADAM KUDRU
     BOLLA HOUSE, PERMANNUR POST
     JAPPINAMOGARU, MANGALURU-574 231

3.   MRS. MARY VINCY FERRAO
     D/O. LATE GULLU D'SOUZA &
     VERONICA D'SOUZA
     W/O. AVID FERRAO
     AGED ABOUT 66 YEARS
     RESIDING AT ST. SEBASTIAN JUICE
     CENTRE, NEAR THOKKOTTU BUS STAND
     PERMANNUR POST, THOKKOTTU
     MANGALURU - 574 231.                     ...APPELLANTS

(BY SRI.SACHIN B.S., ADVOCATE)
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AND

SMT. NANCY D'SOUZA
SINCE DECEASED BY HER LRs

1.    SMT. OLINDA D'SOUZA
      D/O. LATE SMT. NANCY D'SOUZA
      AGED ABOUT 39 YEARS
      RESIDING AT SILVA STAR VILLA,
      BEJAI POST, KANKANADY 'B' VILLAGE
      ALAPE ROAD
      MANGALURU - 575001

2.    MR. NELSON OSWALD D'SOUZA
      S/O. LATE SMT. NANCY D'SOUZA
      AGED ABOUT 36 YEARS
      RESIDING AT DOOR NO.2
      12(13), PETER VIEW, II BLOCK
      KATIPALLA, MANGALURU - 575 001

3.    MR. JAISON D'SOUZA
      S/O LATE SMT. NANCY D'SOUZA
      AGED ABOUT 34 YEARS
      RESIDING AT DOOR NO.2-12 (13)
      PETER VIEW II BLOCK, KATIPALLA
      MANGALURU - 575 001.
                                          ...RESPONDENTS
      (R1 AND R3 ARE SERVED)


      THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CODE

OF CIVIL PROCEDURE SEEKING CERTAIN RELIEFS.


      THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY,

THE COURT MADE THE FOLLOWING:
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                              ORDER

Sri.Sachin.B.S., learned counsel for appellants has

appeared in person.

2. For the sake of convenience, parties are referred to

by their rank as they stand in the original suit.

3. The facts are quite simple. It is stated that the

plaintiff filed a suit in O.S.No.470/2007 on the file of III

Additional Civil Judge & J.M.F.C, Mangaluru, D.K seeking for

partition of the plaint schedule properties and also sought certain

other reliefs. The defendants filed written statement denying the

plaint averments and prayed for dismissal of the suit. The Trial

Court dismissed the suit on 22.08.2014.

Aggrieved by the judgment and decree of the Trial Court,

plaintiffs filed an appeal in R.A.No.97/2014 on the file of Principal

Senior Civil Judge & CJM, Mangaluru, D.K. The first defendant

also preferred an appeal in R.A.No.29/2015. The Appellate Court

vide judgment and decree dated:22.10.2018 allowed the appeals

and set aside the judgment and decree of the Trial Court. The

Appellate Court remitted the matter to the Trial Court directing

the plaintiff to bring all the legal heirs of Salvador D'Souza as

parties to the suit and also make the purchaser Zohara

W/o.U.K.Monu as a party to the suit and to dispose of the suit in

accordance with law. It is this remand order which is challenged

in this appeal on several grounds as set out in the Memorandum

of Second Appeal.

4. Learned counsel for appellants has urged several

contentions.

5. Heard the contentions urged on behalf of appellants

and perused the records with care.

The case really falls within a small compass. The suit was

simple, but as it went on appeal, it has widened out. The

plaintiffs brought an action for the relief of partition and separate

possession. The defendants, however, raised many pleas.

As could be seen from the pleadings, it is the contention of

the plaintiffs that the properties are originally Chalgeni holdings

of Late Salvador D'Souza. During his life time, he was paying

regular Geni to the erstwhile owner and after his death his son

Gallu D'Souza was cultivating the lands on the basis of Chalgeni

Chit dated:08.05.1963. The son Gallu D'Souza died on

17.07.1974 and his wife Mrs.Veronica Pauline D'Souza had filed

declaration under Form No.7 to the Land Tribunal for grant of

occupancy right. The Land Tribunal vide Order No.VSLNo178/82-

83 dated:17.10.1981 granted the suit schedule properties to

Mrs.Veronica Pauline D'Souza. It is also contended that

Mrs.Veronica Pauline D'Souza W/o.Gallu D'Souza died leaving

behind the mother of plaintiffs Mrs.Nancy D'Souza and

defendants as legal heirs.

It is the case of plaintiffs that Mrs.Veronica Pauline D'Souza

has bequeathed a portion of land in favor of the first defendant

and she has also transferred a portion of land in favor of one

Zohara W/o.U.K.Monu under a registered sale deed.

The Trial Court framed five Issues and an additional Issue

with regard to non-joinder of necessary parties. It is noticed that

the Issue No.3 and the additional Issue were taken up together

and the Trial Court answered the same in the Affirmative.

While addressing arguments, counsel for appellant

strenuously urged that the First Appellate Court has erred in

remanding the matter. Learned counsel strenuously urged that

the order of remand is contrary to the provisions of Civil

Procedure Code.

I have heard the contention. The controversy is with regard

to remand.

It is not in dispute that the suit is one for partition. In

partition suit, the purchaser of a property is a necessary party.

The general rule is that suit cannot be dismissed on the ground

of non-joinder of proper parties, but this rule does not apply in

case of non-joinder of necessary parties.

Reverting to the facts of the case, the suit came to be

dismissed for non-joinder of necessary parties. Failure to

implead necessary parties is a fatal to the suit. The Trial Court

therefore, dismissed the suit. By virtue of the remand order, the

Appellate Court has made exception to the general rule and has

erroneously proceeded to remand the matter thereby permitting

the plaintiffs to implead the necessary parties.

I may venture to say that the Appellate Court has failed to

have regard to relevant considerations and disregarded relevant

matters. In my considered opinion, the order of remand is

totally against the canons of Civil Procedure Code. What is

required to be considered by the Appellate Court is whether the

dismissal of the suit is justified or not. On the contrary the

Appellate Court set aside the entire judgment and decree of the

Trial Court and remitted the matter and also directed the

plaintiffs to bring certain persons on record.

Suffice it to note that the order of remand is much against

the mandate of Section 99 of the Code of Civil Procedure which

puts a raider to First Appellate Court from exercising the power

of remand on the ground of non-joinder of necessary parties.

As is well known that Order 41 Rule 23 of the Code of Civil

Procedure deals with remand in other cases i.e., where the Court

from whose decree an appeal is preferred has disposed of the

case otherwise than on a preliminary point, and the decree is

reversed in appeal and a re-trial is considered necessary, the

Appellate Court shall have the same power as it has under Rule

23.

The Apex Court in NADAKERAPPA (SINCE DECEASED) BY

LRS. AND OTHERS VS. PILLAMMA (SINCE DECEASED) BY LRS.

AND OTHERS reported in AIR 2022 SC 1609 has held that an

order of remand cannot be passed for the mere purpose of

remanding a preceding to the Trial Court or to the Tribunal. An

endeavor has to be made by the Appellate Court to dispose of

the case on merits. It is also held that where both the sides have

led oral and documentary evidence, the Appellate Court has to

decide the appeal on merits instead of remanding the case to the

Trial Court or to the Tribunal.

In the present case also, both the plaintiffs and the

defendants went to trial fully knowing the rival case and led

evidence. The trial court in extenso referred to the material on

record and dismissed the suit. However, an appeal, the

Appellate Court has remanded the matter without any

justification. It is needless to say that the power of remand

should be exercised sparingly.

The facts and circumstances of the case do not illustrate

that the matter requires a remand. For the reasons stated above,

I have no hesitation to say that the order of remand is unjust

and illegal.

The substantial question of law is answered accordingly.

Resultantly, the appeal is allowed. The Judgment and

decree passed by the Appellate Court dated:22.10.2018 in

R.A.No.97/2014 is set aside. The Appellate Court is directed to

dispose the case with the material available on record in

accordance with law as expeditiously as possible.

Sd/-

JUDGE

GVP