Karnataka High Court
Smt.Rajeshwaramma And Ors vs Smt.Earamma And Ors on 31 May, 2024
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MSA No. 200194 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
MISCL SECOND APPEAL NO.200194 OF 2017 (CPC)
BETWEEN:
1. SMT. RAJESHWARAMMA W/O LATE GOPALA,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: BRB COLLEGE, RAICHUR-584101.
2. SMT. JAMALAMMA W/O JAMBANNA
AGE: 47 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
R/O: GONAVAR VILLAGE,
TQ: & DIST: RAICHUR-584101.
3. SMT. GOVINDAMMA
W/O BHEEMAYYA, AGE: 35 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O: KALLUDEVAKUNTA VILLAGE,
Digitally signed MANTRALAYAM MANDALAM,
by SWETA
KULKARNI TQ: YEMMIGANUR, DIST: KURNOOL-410001,
Location: High (TELANGANA STATE).
Court of
Karnataka
...APPELLANTS
(BY SRI S. R. KADLOOR, ADVOCATE)
AND:
1. SMT.EARAMMA
W/O LATE HANUMANTHA,
AGE: 39 YEARS, OCC: WORKING AS
PEON IN GOVT. JR., COLLEGE, RAICHUR,
R/O: NEAR HANUMAN TALKIES,
RAICHUR-584101.
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MSA No. 200194 of 2017
2. SMT. ANJINAMMA W/O MALLIKARJUNA
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: NEAR HANUMAN TALKIES,
RAICHUR-584101.
3. GOVINDAPPA S/O THIKKAYYA
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O VADAVATTI VILLAGE,
TQ: & DIST: RAICHUR-584101.
4. THIMMAPPA S/O GOVINDAPPA
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: VADAVATTI VILLAGE,
TQ: & DIST: RAICHUR-584101.
5. GUNDAPPA S/O GOVINDAPPA
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: VADAVATTI VILLAGE,
TQ & DIST: RAICHUR-584101.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADV. FOR R3 TO R5;
SRI SUDHEER KULARNI, ADV. FOR R2;
NOTICE TO R1-SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT DATED 13.09.2017 PASSED IN R.A. NO.16/2013 BY
THE I ADDL. DISTRICT JUDGE, RAICHUR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MSA No. 200194 of 2017
JUDGMENT
The present Miscellaneous Second Appeal by the plaintiffs
- appellants assailing the judgment and order dated
13.09.2017 on the file of the I - Additional District and Sessions
Judge at Raichur [hereinafter referred to as 'the first appellate
Court'] in R.A.No.16/2013, whereby, the first appellate Court
allowed the appeal preferred by defendant Nos.3 to 5 and set
aside the judgment and decree dated 24.01.2013 passed by
the Additional Senior Civil Judge and JMFC-I, Raichur
[hereinafter referred to as 'the Trial Court'] in O.S.No.169/2011
and remanded the matter to the Trial Court to give finding on
Ex.P-25 by affording opportunity to both the sides.
2. This Court had admitted the appeal on 16.11.2017,
however, no substantial question of law was framed by this
Court. At the time of arguments, this Court has framed the
following substantial question of law:
Whether the first appellate Court was justified in law in
remitting the matter to the Trial Court on the ground that
Ex.P-25 was not properly considered by the Trial Court?
3. Sri S.R. Kadloor, learned counsel appearing for the
appellant, Sri Sudheer Kulkarni, learned counsel appearing for
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respondent No.2 and Sri Shivanand Patil, learned counsel
appearing for respondent Nos.3 to 5 have been heard on the
substantial question of law framed by this Court.
4. Learned counsel appearing for the appellants
submits that the Trial Court had decided the suit in accordance
with law after framing issues and affording sufficient
opportunity to the parties and even assuming certain issues
were not answered or decided by the Trial Court, the appellate
Court being the last fact finding Court, instead of remanding
the matter to the Trial Court, could have decided the appeal
after considering the same in accordance with law. Learned
counsel would submit that the remand by the first appellate
Court is merely on the ground that the Trial Court has not
properly considered Ex.P-25 which on face of it is erroneous
and the first appellate Court has mechanically remanded the
matter to the Trial Court contrary to the provisions of Order XLI
Rule 23, 23-A and 25 of CPC.
5. Per contra, learned counsel appearing for the
respondents submits that there is no error or illegality in the
impugned judgment and the first appellate Court was justified
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in remanding the matter to the Trial Court as the Trial Court
has not properly considered Ex.P-25 which in fact would decide
the actual dispute of the parties and the instant appeal is
misconceived and liable to be dismissed.
6. This Court has carefully considered the rival
contentions of the parties and perused the material on record.
7. The plaintiffs/appellants filed suit for partition
seeking 3/5th share in the suit schedule properties and for
declaration that the registered sale deed dated 25.04.2000
executed by late Narsamma, attested by defendant Nos.1 and 2
in favour of defendant No.3 is illegal, null and void and not
binding on the plaintiffs' share. The plaintiffs contended that
Jambanna was the absolute owner of the suit schedule
properties and on his death, his wife Narsamma and five
daughters namely plaintiffs and defendant Nos.1 and 2 are the
legal heirs. That Narsamma - mother of the plaintiffs and
defendant Nos.1 and 2 colluded and executed a sale deed in
favour of defendant No.3 without there being any legal
necessity and the plaintiffs have got right and interest over the
suit schedule properties and they are entitled for 3/5th share.
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8. Defendant Nos.1 to 5, pursuant to the suit
summons, appeared, defendant Nos.1 and 2 did not file any
written statement. Defendant No.3 filed written statement and
defendant Nos.4 and 5 the sons of defendant No.3 adopted the
written statement filed by defendant No.3. It is the contention
of the defendants that during the lifetime of the plaintiffs'
mother, there was a partition between the sisters and the suit
lands had fallen to the share of defendant Nos.1 and 2. That
defendant Nos.1 and 2 sold the suit lands in favour of
defendant No.3 through their mother as the suit lands were
standing in her name and defendant Nos.1 and 2 are
signatories to the sale deed. It is the contention of defendant
No.3 that defendant Nos.1 and 2 and their mother sold the suit
lands for family legal necessity and defendant No.3 is a
bonafide purchaser of the suit lands for valuable consideration.
9. The Trial Court decided the suit by framing the
issues and by the judgment and decree held that the plaintiffs
are entitled for 1/6th share in Suit - A schedule properties and
1/5th share in Suit - B schedule properties, the sale deed
executed by Narsamma in favour of defendant No.3 with
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respect to the suit lands was held not binding on the plaintiffs'
share.
10. Defendant Nos.3 to 5 preferred appeal before the
first appellate Court. The first appellate Court, referring to
Ex.P-25, the mutation entry, arrived at a conclusion that the
Trial Court has not considered Ex.P-25 "whether the suit
schedule properties are joint family properties or exclusive
properties of late Jambanna or not" and remanded the matter
to the Trial Court for discussing and giving finding regarding
E.P-25 exercising its power under Order XLI Rule 23 and 25,
Section 107 (1) (b) of CPC.
11. The provision of remand is made in Rule 23, 23A
and 25 of Order XLI of CPC and are relevant for considering the
substantial question of law. The said provisions read as under:
"23.Remand of case by Appellate court.--Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if
it thinks fit, by order remand the case, and may further
direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is
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preferred, with directions to re-admit the suit under its
original number in the register of civil suits, and proceed
to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
23-A. 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.
25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed
from.--Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit
upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court
from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional
evidence required;
and such Court shall proceed to try such issues,
and shall return the evidence to the Appellate Court
together with its findings thereon and the reasons
therefor within such time as may be fixed by the
Appellate Court or extended by it from time to time."
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12. The Apex Court in the case of P. Purushottam
Reddy and Another vs. Pratap Steels Ltd.1 has held at Para-10
as under:
"10. The next question to be examined is the legality and
propriety of the order of remand made by the High Court.
Prior to the insertion of Rule 23-A in Order 41 of the Code
of Civil Procedure by the CPC Amendment Act 1976, there
were only two provisions contemplating remand by a
court of appeal in Order 41 CPC. Rule 23 applies when the
trial court disposes of the entire suit by recording its
findings on a preliminary issue without deciding other
issues and the finding on preliminary issue is reversed in
appeal. Rule 25 applies when the appellate court notices
an omission on the part of the trial court to frame or try
any issue or to determine any question of fact which in
the opinion of the appellate court was essential to the
right decision of the suit upon the merits. However, the
remand contemplated by Rule 25 is a limited remand
inasmuch as the subordinate court can try only such
issues as are referred to it for trial and having done so,
the evidence recorded, together with findings and reasons
therefor of the trial court, are required to be returned to
the appellate court. However, still it was a settled position
of law before the 1976 Amendment that the court, in an
appropriate case could exercise its inherent jurisdiction
under Section 151 CPC to order a remand if such a
remand was considered pre-eminently necessary ex
(2002) 2 SCC 686
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debito justitiae, though not covered by any specific
provision of Order 41 CPC. In cases where additional
evidence is required to be taken in the event of any one
of the clauses of sub-rule (1) of Rule 27 being attracted,
such additional evidence, oral or documentary, is allowed
to be produced either before the appellate court itself or
by directing any court subordinate to the appellate court
to receive such evidence and send it to the appellate
court. In 1976, Rule 23-A has been inserted in Order 41
which provides for a remand by an appellate court hearing
an appeal against a decree if (i) the trial court disposed of
the case otherwise than on a preliminary point, and (ii)
the decree is reversed in appeal and a retrial is
considered necessary. On twin conditions being satisfied,
the appellate court can exercise the same power of
remand under Rule 23-A as it is under Rule 23. After the
amendment, all the cases of wholesale remand are
covered by Rule 23 and 23A. In view of the express
provisions of these Rules, the High Court cannot have
recourse to its inherent powers to make a remand
because, as held in Mahendra Manilal Nanavati v. Sushila
Mahendra Nanavati (AIR 1965 SC 364), it is well settled
that inherent powers can be availed of ex debito justitiae
only in the absence of express provisions in the Code. It is
only in exceptional cases where the court may now
exercise the power of remand dehors Rules 23 and 23-A.
To wit, the superior court, if it finds that the judgment
under appeal has not disposed of the case satisfactorily in
the manner required by Order 20 Rule 3 or Order 41 Rule
31 CPC and hence it is no judgment in the eye of law, it
may set aside the same and send the matter back for
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rewriting the judgment so as to protect valuable rights of
the parties. An appellate court should be circumspect in
ordering a remand when the case is not covered either by
Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted
order of remand gives the litigation an undeserved lease
of life and, therefore, must be avoided."
The Apex Court in the case of Syeda Rahimunnisa vs. Malan Bi2
at para -36 has held as under:
"36. It is a settled principle of law that in order to claim
remand of the case to the trial court, it is necessary for
the appellant to first raise such plea and then make out a
case of remand on facts. The power of the appellate
court to remand the case to subordinate court is
contained in Order 41 Rules 23, 23-A and 25 of CPC. It
is, therefore, obligatory upon the appellant to bring the
case under any of these provisions before claiming a
remand. The appellate court is required to record
reasons as to why it has taken recourse to any one out
of the three Rules of Order 41 CPC for remanding the
case to the trial court. In the absence of any ground
taken by the respondents (the appellants before the first
appellate court and High Court) before the first appellate
court and the High Court as to why the remand order in
these cases is called for and if so under which Rule of
Order 41 CPC and further in the absence of any finding,
there was no justification on the part of the High Court to
remand the case to the trial court. The High Court
(2016) 10 SCC 315
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instead should have decided the appeals on merits. We,
however, do not consider it proper to remand the case to
High Court for deciding the appeals on merits and
instead examine the merits of the case in these appeals.
13. The Apex Court held that it is obligatory upon the
appellant to bring the case under any of these provisions before
claiming a remand and the appellate Court is required to record
reasons as to why it has taken recourse to any out of three
rules of Order XLI CPC for remanding the case to the Trial
Court. The Apex Court, in the case of J. Balaji Singh vs.
Diwakar Cole and Others3 has held at paras-13 to 15 as under:
13. The main question, which fell for consideration before
the High Court, was whether the first appellate court was
right in remanding the case to the trial court for fresh trial
on merits?
14. There are three provisions in the Code which deal with
the power of the appellate court to remand the case to
the trial court. These provisions are Order 41 Rules 23,
23-A, and 25:
14.1. So far as Order 41 Rule 23 is concerned, it enables
the appellate court to remand the case to the trial court
when it finds that the trial court has disposed of the suit
upon a preliminary point. The appellate court in such
(2017) 14 SCC 207
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cases is empowered to direct the trial court to decide all
the issues on evidence on record.
14.2. So far as Rule 23-A is concerned, it enables the
appellate court to remand the case to the trial court when
it finds that though the trial court has disposed of the suit
on all the issues but on reversal of the decree in appeal, a
re-trial is considered necessary by the appellate court.
14.3. So far as Rule 25 is concerned, it enables the
appellate court to frame or try the issue if it finds that it is
essential to the right decision of the suit and was not
framed by the trial court. The appellate court in such case
may, accordingly, frame the issues and refer the same to
the trial court to take the evidence and record the findings
on such issues and return to the appellate court for
deciding the appeal. In such cases, the appellate court
retains the appeal to itself.
15. Now coming to the facts of the case, we are of the
considered opinion that once the first appellate court
allowed the application under Order 41 Rule 27 of the
Code and took on record the additional evidence, it rightly
set aside the judgment/decree of the trial court giving
liberty to the parties to lead additional evidence in
support of their case which, in turn, enabled the trial
court to decide the civil suit afresh on merits in the light
of the entire evidence. The first appellate court was,
therefore, justified in taking recourse to powers conferred
on the appellate court under Order 41 Rule 23-A for
remanding the case to the trial court. We find no fault in
exercise of such power by the first appellate court."
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14. The appellate Court can remand the matter to the
Trial Court, when the Trial Court has disposed of the suit on
merits and the decree is reversed in appeal and the appellate
Court considers re-trial is necessary. The power of remand to
be exercised by the appellate Court when the Trial Court does
not decide on certain issues or decide suit only on preliminary
issue. In the instant case, the Trial Court has framed issue
Nos.1 to 4 which read as under:
"1. Whether the plaintiffs prove that, suit schedule "A &
B" properties are the exclusive properties of Jambanna as
contended in their plaint?
2. Whether the plaintiffs prove that, after the death of
Jambanna, plaintiffs, defendants no-1 & 2 and
Narasamma succeeded to the suit schedule "A & B"
property as contended in their plaint?
3. Whether the plaintiffs prove that, after the death of
Narasamma plaintiffs and defendants no-1 & 2 succeeded
to the suit schedule "A & B" properties as contended in
their plaint?
4. Whether the plaintiffs prove that, they are entitle for
3/5th share jointly in the suit schedule "A & B"
properties?"
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15. The Trial Court has given finding on issue Nos.1 to
4 and also on issue Nos.6 and 7, the first appellate Court
without properly considering the reasons assigned by the Trial
Court, has decided the appeal for remanding the matter to the
Trial Court. The first appellate Court, being the last fact finding
Court, ought to have considered and decided the appeal on
merits. The ground stated for remand does not fall under
Order XLI Rule 23, 23A and 25 CPC.
16. For the foregoing reasons, the substantial question
of law is answered accordingly and this Court pass the
following:
ORDER
(i) This Miscellaneous Second Appeal is
allowed.
(ii) The matter is remitted back to the first
appellate Court to re-appreciate and
reconsider the appeal on merits.
(iii) Parties to be appear before the First
Appellate Court on 25.06.2024.
(iv) All contentions are kept open to be urged.
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(v) The First Appellate Court to pass
appropriate orders afresh in accordance
with law.
(vi) Any observations made by this Court will
not come in the way while passing the final
order on merits.
Sd/-
JUDGE
swk
CT: VD
