Karnataka High Court
Smt. Kamala W/O. Ninganagouda Patil vs Shri. Basanagouda S/O.Rudragouda ... on 4 December, 2023
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MSA No. 100004 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
MSA NO.100004 OF 2022 (RO)
BETWEEN:
1. SMT. KAMALA
W/O. NINGANAGOUDA PATIL
AGE: 64 YEARS, OCC: HOUSEHOLD
2. SMT. VIJAYALAXMI
D/O.NINGANAGOUDA PATIL
AGE: 43 YEARS, OCC JOB,
3. SHRI VIVEKANAND
S/SO. NINGANAGOUDA PATIL
AGE: 38 YEARS, OCC JOB/PRIVATE SERVICE
Digitally 4. SHRI VISHWANATH
signed by
VISHAL S/O. NINGANAGOUDA PATIL
VISHAL NINGAPPA
NINGAPPA PATTIHAL AGE: 37 YEARS, OCC HOUSEHOLD
PATTIHAL Date:
2023.12.12
12:29:55
+0530 (NOTE: ALL THE APPELLANTS ARE
R/O. KAMALA NIWAS, PLOT NO. 13,
SECTOR NO. 12, MAHANTESH NAGAR,
BELAGAVI-590001)
... APPELLANTS
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND:
1. SHRI BASANAGOUDA
S/O. RUDRAGOUDA PATIL
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MSA No. 100004 of 2022
AGE: 64 YEARS, OCC: AGRICULTURE,
2. SHRI VEERENDRAGOUDA
S/O. RUDRAGOUDA PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
3. SHRI SAKKARAGOUDA
S/O. RUDRAGOUDA PATIL
AGE: 70 YEARS, OCC: AGRICULTURE,
4. SHRI SURESH
S/O. RUDRAGOUDA PATIL
AGE: 62 YEARS, OCC AGRICULTURE,
(NOTE: ALL THE RESPONDENTS ARE
R/O. T.C.P. 621/A, GOUDAR ONI,
SOMAWARPET, KITTUR, TQ: BAILHONGAL
DIST: BELAGAVI, PIN: 591115)
...RESPONDENTS
(BY SRI. V.M. SHEELVANT, ADVOCATE FOR R1 TO R4)
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER XLIII RULE 23(1) (u) OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO THIS HONBLE COURT, THAT
THE JUDGMENT AND DECREE DATED 05.07.2021 IN
R.A.NO.06/2019 PASSED BY THE SENIOR CIVIL JUDGE,
BAILHONGAL, BE KINDLY SET ASIDE, BY ALLOWING THIS
APPEAL AND CONSEQUENTLY DECREEING THE SUIT IN O.S.NO.
62/2015 (OLD O.S.NO.137/2010) IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MSA No. 100004 of 2022
JUDGMENT
1. The present miscellaneous second appeal by the
plaintiffs assailing the judgment and decree dated 5th July
2021 on the file of the Senior Civil Judge, Bailhongal in R.A.
No.6/2019 setting aside the judgment and decree of the
trial Court, dated 6th December 2018 on the file of the Civil
Judge and JMFC, Kittur in O.S. No.62/2015 and ordering for
remand of the case for fresh trial.
2. This Court, while admitting the present appeal on
04.12.2023 has framed the following substantial question of
law:
"Whether the first appellate Court was justified
in exercising the discretion under Order 41 Rule 23A
of CPC and remanding the matter to the trial Court is
justified in the present facts and circumstances of the
case?"
3. Heard Smt.Chetana S.Biraj learned counsel
appearing for the appellants and Shri V.M. Sheelvant
learned counsel appearing for the respondents on the
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substantial question of law and perused the judgment and
decree of the Courts below.
4. Plaintiffs instituted suit seeking for relief of
vacant possession of the suit property and mesne profit
from 01.10.2009, till its realization. The suit was contested
by the defendants and the trial Court by framing the issues
decreed the suit directing the defendants to vacate and
hand over the possession of the suit property in favour of
the plaintiffs within three months from the date of order.
Further, a direction was given by the trial Court to send the
original agreement dated 15.09.1988 to the Deputy
Commissioner, Belagavi to recover the deficit duty and
penalty as arrears of land revenue as per Section 34 of the
Karnataka Stamp Act, after lapse of appeal period.
5. The appeal was preferred by the defendants
before the first appellate Court, along with the appeal, I.A.
No.2 under Order 41 Rule 10(1) of CPC seeking direction to
obtain and receive the original agreement dated 15.09.1988
in the custody of the trial Court in O.S. No.62/2015. The
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plaintiffs - appellants filed objections to I.A. No.2. The first
appellate Court, while considering the appeal on its merits
was of the opinion that the document sought in I.A No.2
needs to be marked for collateral purpose and proved in
due course by the defendant by leading further evidence,
while holding so, the first appellate Court remits the matter
to the trial Court for reconsideration afresh in accordance
with law.
6. Learned counsel for the appellants would contend
that I.A No.2 was filed only to obtain and receive the
original agreement in the custody of the trial Court,
however the first appellate Court has misconstrued I.A No.2
and has gone to the extent of directing the trial Court to
mark the unregistered and insufficiently stamp document
and the defendants to lead evidence on an inadmissible
document which was rightly rejected by the trial Court.
Learned counsel would contend that the order of remand by
the first appellate Court was uncalled for and the first
appellate Court has failed to exercise the appellate powers
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of considering the matter on merits and the order of
remand is liable to be set aside.
7. Per contra, learned counsel for the respondents
would justify the judgment and decree of the first appellate
Court and would contend that the necessary document
sought to be received in I.A. No.2 was necessary to be
marked for collateral purpose and this exercise could have
been done only by the trial Court and the first appellate
Court was justified in remanding the matter for
reconsideration afresh and the same does not warrant any
interference in the hands of this Court.
8. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the judgment and decree of the Courts
below.
9. Order XLI Rule 23A of CPC contemplates as
under:
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"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."
10. Provisions of Rule 23-A of Order XLI enumerates
that the appellate Court may remand the suit to the trial
Court even though such suit has been disposed of on
merits. It provides that where the trial Court has disposed
of the suit on merits the decree is reversed in appeal and
the appellate Court considers that the retrial is necessary,
the appellate Court may remand the suit to the trial Court.
Thus, the two conditions needs to be satisfied, while the
appellate Court can exercise the same power of remand
under Order XLI Rule 23-A of CPC.
11. The competence of the Court to remand the
matter to the trial Court for fresh consideration is when the
appellate Court considers that the retrial is necessary. The
first appellate Court has failed to appreciate that under I.A
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No.2 the defendants had only sought to receive the original
agreement dated 15.09.1988 in the custody of the trial
Court. The trial Court had impounded the document and
held that the document is inadmissible to mark in evidence
for want of registration and being insufficiently stamped
document. Thus the remand made by the first appellate
Court for fresh trial to accord opportunity to the defendant
to let in evidence by marking the documents dated
15.09.1988 for collateral purpose is without application of
mind and highly impermissible.
12. This exercise whether the document can be
taken into consideration or not, was the exercise to be done
by the first appellate Court itself and the trial Court having
held that the document is inadmissible in evidence, the
reasoning accorded by the first appellate Court that the
document is to be marked for collateral purpose, is contrary
to the proposition law and warrants interference by this
Court. A reading of the judgment of the first appellate Court
more particularly at paragraph Nos.56 to 59 it can be
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observed by this Court that the first appellate Court has
shrugged away with its duty to consider the matter on
merits of the case and the manner in which the first
appellate Court has dealt with the appeal, this Court is of
the considered view that the order of the first appellate
Court warrants interference of this Court.
13. The appellate Court should not ordinarily remand
a case under Order XLI Rule 23 CPC, as remand orders lead
to unnecessary delay and cause prejudice to the parties and
the appellate Court should itself consider the material
available before it and should decide the appeal one way or
the other. In the instant case, the trial Court rejected to
admit the document for want of registration and
insufficiently stamped document, the order of remand by
the appellate Court permitting the defendant to lead
evidence on an inadmissible document was uncalled for, it
is a settled law that if a document that is required to be
stamped is not sufficiently stamped, a copy of such
document as secondary evidence also cannot be accepted.
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14. The first appellate Court has not decided the first
appeal in the manner the first appeal is required to be dealt
with and to be disposed of. The first appeal is a final Court
of facts, as pure findings of fact remain immune from
challenge before this Court in second appeal. The powers of
the first appellate Court by deciding the first appeal under
Section 96 of R/w. Order XLI Rule 31 CPC are well defined
by authoritative pronouncement of the Apex Court. The
judgment of the Apex Court must show a conscious
application of mind, with reasons given for findings on all
issues and contentions. The Apex Court in the case of
Santosh Hazari Vs. Purushottam Tiwari (Deceased)
by LRs1 has held that the first appeal is a valuable right of
the parties and unless restricted by law, the whole case is
therein open for rehearing both on questions fact and law.
The judgment of the appellate Court must therefore, reflect
its conscious application of mind and record findings
supported by reasons and at para No.15 has held as under:
(2001) 3 SCC 179
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"15. A perusal of the judgment of the trial
court shows that it has extensively dealt with the
oral and documentary evidence adduced by the
parties for deciding the issues on which the parties
went to trial. It also found that in support of his
plea of adverse possession on the disputed land,
the defendant did not produce any documentary
evidence while the oral evidence adduced by the
defendant was conflicting in nature and hence
unworthy of reliance. The first appellate court has,
in a very cryptic manner, reversed the finding on
question of possession and dispossession as
alleged by the plaintiff as also on the question of
adverse possession as pleaded by the defendant.
The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is
a valuable right of the parties and unless restricted
by law, the whole case is therein open for
rehearing both on questions of fact and law. The
judgment of the appellate court must, therefore,
reflect its conscious application of mind and record
findings supported by reasons, on all the issues
arising along with the contentions put forth, and
pressed by the parties for decision of the appellate
court. The task of an appellate court affirming the
findings of the trial court is an easier one. The
appellate court agreeing with the view of the trial
court need not restate the effect of the evidence or
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reiterate the reasons given by the trial court;
expression of general agreement with reasons
given by the court, decision of which is under
appeal, would ordinarily suffice (See Girijanandini
Devi v. Bijendra Narain Choudhary8). We would,
however, like to sound a note of caution.
Expression of general agreement with the findings
recorded in the judgment under appeal should not
be a device or camouflage adopted by the
appellate court for shirking the duty cast on it.
While writing a judgment of reversal the appellate
court must remain conscious of two principles.
Firstly, the findings of fact based on conflicting
evidence arrived at by the trial court must weigh
with the appellate court, more so when the
findings are based on oral evidence recorded by
the same Presiding Judge who authors the
judgment. This certainly does not mean that when
an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by
the trial Judge. As a matter of law if the appraisal
of the evidence by the trial Court suffers from a
material irregularity or is based on inadmissible
evidence or on conjectures and surmises, the
appellate court is entitled to interfere with the
finding of fact. (See Madhusudan
Das v. Narayanibai9) The rule is -- and it is nothing
more than a rule of practice -- that when there is
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conflict of oral evidence of the parties on any
matter in issue and the decision hinges upon the
credibility of witnesses, then unless there is some
special feature about the evidence of a particular
witness which has escaped the trial Judge's notice
or there is a sufficient balance of improbability to
displace his opinion as to where the credibility lie,
the appellate court should not interfere with the
finding of the trial Judge on a question of fact.
(See Sarju Pershad Ramdeo Sahu v. Jwaleshwari
Pratap Narain Singh10) Secondly, while reversing a
finding of fact the appellate court must come into
close quarters with the reasoning assigned by the
trial court and then assign its own reasons for
arriving at a different finding. This would satisfy
the court hearing a further appeal that the first
appellate court had discharged the duty expected
of it. We need only remind the first appellate
courts of the additional obligation cast on them by
the scheme of the present Section 100 substituted
in the Code. The first appellate court continues, as
before, to be a final court of facts; pure findings of
fact remain immune from challenge before the
High Court in second appeal. Now the first
appellate court is also a final court of law in the
sense that its decision on a question of law even if
erroneous may not be vulnerable before the High
Court in second appeal because the jurisdiction of
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the High Court has now ceased to be available to
correct the errors of law or the erroneous findings
of the first appellate court even on questions of law
unless such question of law be a substantial one."
15. Reverting to the facts of the instant case and
looking into the reasoning accorded by the first appellate
Court, this Court is of the considered view that the first
appellate Court did not discharge the duty cast on it as a
Court of first appeal on facts and accordingly the substantial
question of law framed by this Court needs to be answered
and the order of remand by the first appellate Court
warrants interference from this Court.
16. For the foregoing reasons, this Court pass the
following:
ORDER
(i) The miscellaneous second appeal is hereby
allowed;
(ii) The impugned judgment and decree of the
first appellate Court is hereby set aside
matter is remitted back to the first appellate
Court for reconsidering the matter afresh on
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merits and pass appropriate orders
exercising the duty cast on it as a Court of
first appeal in accordance with law.
(iii) All contentions of the parties are kept open
to be urged before the first appellate Court.
(iv) This Court has not expressed any opinion on
the merits or demerits of the case and if any,
it is only to the limited extent of considering
this miscellaneous second appeal.
(v) The parties to appear before the first
appellate Court on 08.01.2024.
(vi) Since the suit is of the year 2010 for
possession filed by the plaintiffs - appellants
herein, the first appellate Court is requested
to dispose of the appeal as expeditiously as
possible.
Sd/-
JUDGE
VNP / CT: UMD
