Karnataka High Court

Smt.Renuka W/O. Appanna Telagi vs Rajendra S/O.Bhimappa ... on 22 August, 2023

Bench: C.M.Poonachapresided Bycmpj

                                       IN THE HIGH COURT OF KARNATAKA,

                                                 DHARWAD BENCH

                                    DATED THIS THE 22ND DAY OF AUGUST, 2023

                                                       BEFORE

                                    THE HON'BLE MR JUSTICE C. M. POONACHA

                               MISCELLANEOUS SECOND APPEAL NO. 100144 OF 2019


                              BETWEEN
                              1.    SMT.RENUKA W/O. APPANNA TELAGI,
                                    AGE : 33 YEARS, OCC : HOUSEHOLD WORK,
                                    R/O : BADAGI, TQ : BILAGI,
                                    DIST: BAGALKOT-587101.

                              2.    SHRUSTI D/O. APPANNA TELAGI,
                                    AGE : 12 YEARS, SINCE MINOR BY HER
                                    MINOR GUARDIAN MOTHER APPELLANT NO.1,
                                    R/O : BADAGI, TQ : BILAGI,
                                    DIST: BAGALKOT-587101.
                                                                            ...APPELLANTS
                              (BY SRI. UMESH P. HAKKARKI, ADV.)

                              AND
           Digitally signed
           by
           SHIVAKUMAR         1.     RAJENDRA S/O.BHIMAPPA DYAVANNAVAR,
SHIVAKUMAR HIREMATH
HIREMATH
           Date:                     AGE : 42 YEARS, OCC : AGRICULTURE AND ADVOCATE,
           2023.08.23
           15:35:33 +0530            R/O : GIRIGAON, TQ : BILAGI,
                                     DIST : BAGALKOT-587101.

                              2.     APPANNA MANOHAR TELAGI,
                                     AGE : 41 YEARS, OCC : SERVICE IN BILAGI PATTAN
                                     SAHAKARI BANK,
                                     R/O. BADAGI, TQ : BILAGI,
                                     DIST : BAGALKOT-587101.
                               2



3.    S.T.UTTARKAR,
      THE ASSISTANT REGISTRAR OF CO.OP. SOCIETIES AND
      RECOVERY OFFICER, BILAGI,
      PATTAN SAHAKARI NIYAMITA BILAGI,
      AGE : 74 YEARS, OCC : SERVICE,
      R/O. BILAGI, NOW AT VIDYAGIRI,
      DIST: BAGALKOT-587101.

4.     THE CHAIRMAN,
       BILAGI PATTAN SAHAKARI BANK NIYAMITA,
       BILAGI, DIST :BAGALKOT-587101.
                                           RESPONDENTS
(BY   SRI. HARSH DESAI, ADV. FOR R1;
      SRI. VISHWANATH HEGDE, ADV. FOR R2;
      SRI. SHIVRAJ P. MUDHOL, ADV. FOR R4)

      THIS MISCELLANEOUS SECOND APPEAL FILED U/SEC.43
RULE 1 (u) OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT
AND DECREE PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN RA NO. 68/2010 DATED
24.09.2019 BY SETTING ASIDE THE JUDGEMENT AND DECREE
PASSED IN OS NO. 12/2008 BY THE SENIOR CIVIL JUDGE,
BILAGAI DATED 10.12.2009 AND REMANDING THE MATTER TO
TRAIL COURT IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS MISCELLANEOUS SECOND APPEAL HAVING BEEN
HEARD AND RESERVED ON 08.08.2023, COMING ON FOR
PRONUNCEMENT OF JUDGMENT, THIS DAY, THIS COURT
PRONUNCED THE FOLLOWING:

                        JUDGMENT

The above second appeal is filed under Order 41

Rule 4 of Code of Civil Procedure, 1908 (hereinafter

referred to as 'CPC' for short) challenging the

judgment dated 24.09.2019 passed in

R.A.No.68/2010 whereunder the appeal filed by the

first respondent was allowed and the judgment and

decree dated 10.12.2009 passed in O.S.No.12/2008

was set aside and the matter has been remanded to

the trial Court.

2. The relevant facts necessary for

consideration of the present appeal are that the

appellants/plaintiffs instituted a suit in

O.S.No.12/2008 arraying the second respondent as a

defendant seeking for partition and separate

possession of the suit property. The said suit was

decreed vide judgment and decree dated 10.12.2009.

Being aggrieved by the same, the first respondent

who was not a party to the suit, filed R.A.No.68/2010.

The respondents No.3 and 4 herein were also not

parties to the suit. However, they are arrayed as

respondents No.1 and 2 in R.A.No.68/2010. Since the

first respondent was not a party to the suit, along with

R.A.No.68/2010 he also filed I.A.No.1 under Section

151 of CPC for permission to file an appeal as well as

I.A.Nos.5 and 6 under Order 41 Rule 27 of CPC. The

first appellate Court by its judgment and decree dated

24.09.2019, allowed the appeal and passed the

following order:

"The regular appeal filed by appellant/third party is hereby allowed.

The judgment and decree passed by Senior Civil Judge, Bilagi in O.S. No. 12/2008 dated 10.12.2009 is hereby set aside.

The matter is remanded to lower court for disposal of same in accordance with law.

The documents sought to be produced by appellant/third party and respondents 4 and 5 under I.A.No. V and VI are allowed to be produced. The lower court is directed to accept the said documents on record and allow appellant/third party to be impleaded as party to the suit. Thereafter, the lower court after giving

reasonable opportunities to the parties for leading evidence and then to dispose off suit as expeditiously as possible, since it is old matter.

The parties appeared through their counsel, hence they are directed to appear before lower court on 4.11.2019 to receive further instructions. The lower court to issue notice only to respondents No. 1 and 3."

3. Being aggrieved, the present appeal is filed

by the plaintiffs.

4. Learned counsel for appellants contended

that the first appellate Court ought not to have

allowed I.A.No.1 filed under Section 151 of CPC along

with the main appeal and ought not to have

considered I.A.No.1 seeking permission prior to

adjudication of the appeal on merits. He further

contends that notwithstanding the fact that an

application under Order 41 Rule 27 of CPC was filed,

the first appellate Court ought to have followed the

procedure as contemplated under Order 21 Rule 28 of

CPC. Hence, he seeks for allowing of the above

appeal and granting of the reliefs sought for.

5. Per contra, learned counsel for first

respondent who was the appellant before the first

appellate Court submits that the suit has been filed by

the appellants/plaintiffs arraying only the defendant

who is none other than the husband of the first

appellant and father of the second appellant before

the trial Court and in the plaint schedule, only one

item of property has been mentioned. That the suit

property was mortgaged by the defendant with the

respondent No.4-Society and in view of non-payment

of the amounts due and payable, the suit property

was auctioned and the first respondent is the auction

purchaser of the suit property. That the plaintiffs have

not included any other property in the suit for

partition filed by them as also not made any other

member of the family as party to the suit. He further

submits that the suit has been filed only to defeat the

rights created by the defendant and that suit has been

filed in collusion with the defendant. That all aspects

regarding collusion and the mortgage as well as the

right created in favour of the auction purchaser has

been placed on record before the first appellate Court.

He further submits that the rights of the auction

purchaser would be adversely affected and hence the

appeal was filed before the first appellate Court along

with I.A.No.1 for seeking permission. It is also

submitted on behalf of the first respondent that the

contention put forth by the appellant that I.A.No.1

ought to have decided prior to deciding the appeal on

merits was not put forth before the first appellate

Court and hence the contention of the appellant is

untenable. He further submits the first appellate Court

has remanded the matter on its entirety to the trial

Court which judgment is just and proper and not liable

to be interfered with in the present appeal.

6. Learned counsel for fourth respondent-

Bank submits that the entire amount due and payable

by the fourth respondent has been cleared by the

purchase price paid by the auction purchaser and the

deficit amount has been paid by the brother of the

defendant on behalf of the defendant.

7. I have considered the submissions made by

the learned counsel for parties and perused the

material on record. The question that arises for

consideration is,

"Whether the order of remand made by the first appellate Court is just and proper?"

8. The relevant facts are not in dispute

inasmuch as the suit in O.S.No.12/2008 was filed by

the appellant-plaintiffs arraying only second

respondent as the defendant and that the said suit

has been decreed. The only item of property which

was the subject matter of the suit is the property

bearing R.S.No.141/1 of Badagi village which property

was the subject matter of the auction proceedings

conducted by the respondents No.3 and 4 and that the

first respondent is the auction purchaser in the said

auction.

9. The suit of the plaintiffs having been

decreed in respect of suit property which was

purchased by the auction purchaser and having regard

to the fact that the decree would impeach the rights of

the auction purchaser, he filed R.A.No.68/2010 along

with an application under Section 151 of CPC seeking

for permission to file the appeal. It is forthcoming

from para 14 of the order of the first appellate Court

that since the hearing on the said application under

Section 151 of CPC was not pressed into service, the

same was taken into consideration along with the

appeal. The procedure adopted by the first appellate

Court cannot be said to be erroneous having regard to

the fact that it framed point No.1 for determination

which was with regard to whether sufficient grounds

were made out for seeking permission to file the

appeal. The appellate Court having answered the

point No.1 in the affirmative allowing I.A.No.1,

proceeded to consider other points which were framed

for determination.

10. The first respondent had filed I.A.No.5

dated 22.11.2017 and I.A.No.6 dated 21.08.2019

before the first appellate Court under Order 41 Rule

27 of CPC and along with the said applications,

produced various documents in respect of the case put

forth by him. The first appellate Court has framed

point No.2 for consideration and having recorded a

finding that the documents produced along with the

said applications were required for adjudication of the

issues that arise for determination of the suit, allowed

the applications. However, the first appellate Court

has also framed point No.3 for consideration as to

whether the decree was collusive one and after

noticing the factual matrix, the first appellate Court

has recorded a categorical finding that the decree in

favour of the plaintiffs was a collusive one with the

defendant suppressing material facts and hence, an

opportunity was required to be given to place the

evidence on record in the suit.

11. In support of the contention that while

passing the order of remand, the first appellate Court

was required to follow the procedure contemplated

under Order 41 Rule 28 of CPC, the counsel for

appellants have relied on the judgment of the Co-

ordinate Bench of this Court in the case of

Shantaveerappa Vs. Janardhanachari1. In order to

consider the said contention of the appellants, it is

necessary to notice that by virtue of Order 41 Rule 23

of CPC, the appellate Court is empowered to remand

the case if the appeal is preferred against a decree

which has been disposed of by the trial Court upon a

preliminary point and the matter may be remanded

for consideration of all the issues. Rule 23A of Order

41 of CPC reads as follows:

[23A. Remand in other cases.- 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 powers as it has under rule 23.]

12. Hence the power under Rule 23A of Order

41 of the CPC also permits remand of a suit not

ILR 2007 KAR 1127

decided on a preliminary point if the decree is

reversed in appeal and re-trial is considered

necessary.

13. The appellate Court can also remand a

matter if an application is filed under Order 41 Rule 27

of CPC is filed and if the contentions stipulated are

satisfied inasmuch and the procedure as contemplated

under Order 41 Rule 28 and Rule 29 of CPC is required

to be followed.

14. In the case of Shantaveerappa1, the Co-

ordinate Bench of this Court while considering the

scope of remand, has held as follows:

7. Point No. (2):- A reading of order 41 rules 27, 28 and 29 CPC make it clear that, whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred or any other subordinate Court, to take such evidence and to send it to the Appellate Court.

This is the requirement of law as contained in Rule

28. On receipt of such material, after hearing the parties, the Appellate Court shall pronounce the judgment on merits. The scheme of these provisions for not provide for setting aside a well considered judgment and the decree of the Trial court solely on the ground that the application filed for additional evidence is allowed. The Appellate Court should remember that merely because it decide to admit additional evidence under this rule, it should not set aside the judgment and decree of the Trial Court and remand the case to the Trial Court, unless it falls within Rule 23.

8. xxx

9. Order 41 Rule 23 CPC applies to a case where a suit is disposed of upon a preliminary point and the said decree is reversed in appeal. In other words, when the Trial Court has not decided the case on merits or when it has not recorded evidence on all issues and pronounced its judgment on all issues but disposed of the suit upon a preliminary point, then the Appellate Court, even if it wants, is unable to pronounce judgment ton merits. Therefore, in such circumstances, if the Appellate Court reverses the finding of the Trial

Court on preliminary issue, it has no option except to remand the suit to the Trial Court for Trial and disposal on merits. In other words, it is a case of an open remand. However, similar power is conferred on the Appellate Court under Rule 23A, even if the Trial Court has disposed of the suit on merits and the said judgment is reversed in appeal and the Appellate Court feels a re-trial is necessary it has the jurisdiction to order for an open remand."

15. It is clear from the finding recorded in the

case of Shantaveerappa1 that the appellate Court is

entitled to order for "open remand" as contemplated

under Rule 23A of Rule 41 of CPC.

16. In the present case, the appellate Court

has recorded a categorical finding that the decree of

the trial Court is a collusive one. The first appellate

Court has also considered as to whether sufficient

grounds were made out seeking additional evidence as

per the applications i.e., I.A.No.5 and 6 filed under

Order 41 Rule 27 of CPC and point No.2 has been

framed for consideration of the same. Having noticed