Smt.Fathemunnisa Begum vs Mohd.Abdul Haq
2022 Latest Caselaw 6000 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

             IA Nos.1, 2 & 3 of 2021 and 1 & 2 of 2022
                               in/and
                        CCCA No.69 of 2012

COMMON ORDER:

        The unsuccessful defendant has preferred this appeal

assailing the judgment and decree dated 23.04.2012 in OS

No.157 of 2009 on the file of the learned XIII Additional

Chief    Judge     (Fast   Track   Court),   City   Civil   Court,

Hyderabad.


        2.     The original suit in OS No.157 of 2009 was filed

by the plaintiff for specific performance of contract based

on the agreement of sale dated 14.11.2008. The trial Court

after full length trial has decreed the suit of the plaintiff

holding that the plaintiff is entitled for specific performance

of agreement of sale dated 14.11.2008. The defendant was

directed to execute the registered sale deed in respect of

suit schedule property on receipt of the balance sale

consideration within three months from the date of

judgment, holding that failing which the plaintiff is entitled

for obtaining the sale deed by due process of law.
                           Page 2 of 12




      3.   Feeling aggrieved by the said judgment and

decree, the defendant has preferred this appeal. During the

pendency of the appeal suit, the son of the appellant/

defendant has filed IA No.1 of 2021 under Order-32, Rule 4

read with Section 151 of the Civil Procedure Code, 1908

(for short 'C.P.C.') to permit him to act as next friend of the

appellant, who is incapacitated to prosecute the appeal due

to her unsound state of mind and to pass any such other

orders. Along with IA No.1 of 2021, he has also filed IA

No.2 of 2022 to receive certain medical record of her

mother in IA No.1 of 2021 for better appreciation of the

issue involved in the said IA.


      4.   The appellant has filed IA No.2 of 2021 for

temporary injunction restraining the respondent/plaintiff

from dispossessing the appellant and their family members

from the suit schedule property. IA No.3 of 2021 is filed by

the appellant/defendant to restrain the respondent/

plaintiff from creating any third party interest or executing

any other document of alienation in respect of the suit

schedule property. All the above interlocutory applications

filed in IA Nos.1 to 3 of 2021, IA No.2 of 2022 filed by or on

behalf of appellant/defendant are resisted by the

respondent/plaintiff.

5. Whereas, IA No.1 of 2022 is filed by the

respondent/ plaintiff to close the appeal No.69 of 2012 as

infructuous, since the appellant/defendant has executed a

registered sale deed on 20.07.2021 in respect of the suit

schedule property, pursuant to the judgment and decree

on receipt of the balance sale consideration.

6. Heard the learned counsel on both sides. The

submissions made on either side have received due

consideration of this Court.

7. For the sake of convenience, the parties are

hereinafter referred to as plaintiff and defendant as arrayed

in the original suit.

8. The plaintiff has filed the original suit for

specific performance of agreement of sale dated 14.11.2008

and that suit was decreed directing the defendant to

execute the registered sale deed in respect of the suit

schedule property on receipt of the balance sale

consideration. However, it is the case of the defendant that

during pendency of this appeal suit, the defendant

executed the registered sale deed dated 20.07.2021,

accordingly he has filed IA No.1 of 2022 under Section 151

of C.P.C. with a prayer to close the CCCA No.69 of 2012 as

infructuous.

9. Be it stated that the appellant/defendant did

not turn up, but her son has filed IA No.1 of 2021 to permit

him to prosecute the matter as next friend of the appellant

alleging that due to her old-age and symptoms of

Alzheimer, she is incapacitated to prosecute this appeal

and that she is of unsound mind. Along with IA No.1 of

2021, he has filed IA No.2 of 2022 to receive medical

evidence to show that the appellant /defendant is suffering

from unsound mind.

10. Similarly, during pendency of this appeal, the

appellant/defendant has filed two applications IA Nos.2

and 3 of 2021 for temporary injunction to restrain the

plaintiff from dispossessing her from the suit schedule

property and also to restrain the plaintiff from creating any

third party interest in respect of the suit schedule property.

But, according to the plaintiff, during pendency of this

appeal suit filed in the year 2012, the defendant has

executed the registered sale deed dated 20.07.2021 and

that the appeal suit has become infructuous.

11. Be it stated that much before 20.07.2021 itself,

the son of appellant/defendant has filed IA Nos.1, 2 & 3 of

2021 to permit him to act as next friend of the defendant,

who is her mother and also for temporary injunction

restraining the plaintiff from dispossessing the defendant

and her family members from the suit schedule property

and also to restrain the plaintiff from crating any third

party interest or from executing any other document of the

alienation in respect of the suit schedule property. It

appears he has also filed Writ Petition No.27569 of 2021

seeking a direction to the Commissioner and the Inspector

General of Registration and Stamps, Hyderabad, to initiate

necessary action in accordance with the procedure laid

down under Section 82 of the Registration Act for

impersonating the defendant fraudulently obtaining sale

deed in respect of the suit schedule property as per the

document No.5035 of 2021, dated 20.07.2021.

Accordingly, a learned single Judge of this Court has

directed the Commissioner and Inspector General of

Stamps and Registration, Hyderabad, to consider the

request/complaint of the petitioner dated 26.07.2021 and

pass necessary orders thereon strictly in accordance with

law within a period of eight weeks from the date of receipt

of copy of this order.

12. The respondent also filed a copy of proceedings

No.G/5220 of 2021 of the District Registrar, Hyderabad

(South), dated 28.02.2022. As per the said proceedings, an

enquiry was conducted on the complaint lodged by the writ

petitioner in WP No.27569 of 2021. Thus, during pendency

of the appeal suit, the appellant/defendant allegedly

executed a registered sale deed dated 20.07.2021 and the

very execution of sale is challenged by her son alleging that

she is suffering from Alzheimer and she is mentally

unsound person and she does not know anything and filed

W.P.No.27569 of 2021, obtained a direction. The District

Registrar, Hyderabad (South) has held enquiry, pursuant

to the directions in WP No.27569 of 2021. In the

meanwhile, the son of the appellant/defendant has also

filed IA No.1 of 2021 seeking a permission to act as a next

friend of the appellant and also the appellant has filed IA

Nos.2 and 3 of 2021 to restrain the respondent/plaintiff

from dispossessing the appellant and also from creating

any third party interest in respect of the suit schedule

property. Thereafter, the respondent has filed IA No.1 of

2022 to close the appeal as infructuous.

13. In view of the peculiar facts of the case,

checkered history of litigation, considering the subsequent

developments after filing and during pendency of appeal

suit, it is felt essential to receive copy of the disputed sale

deed filed by the respondent/plaintiff along with IA No.1 of

2022 on to record. At the same time, it is also felt essential

to receive the medical evidence filed by the son of the

appellant, vide IA No.2 of 2022 to ascertain whether the

defendant has voluntarily executed the registered sale deed

as stated above or she is incapacitated due to

unsoundness of her mind.

14. There are three provisions in the Code of Civil

Procedure, 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 of CPC.

So far as Order-41 Rule-23 CPC is concerned, it enables

the appellate Court to remand the case to the trial Court

when the trial Court has disposed of upon the preliminary

point. The appellate Court in such circumstances is

empowered to direct the trial Court to decide all the issues

on sufficient evidence which is available on record.

15. So far as Rule 23 (A) of Order 41 of CPC is

concerned, it enables the appellate Court to remand the

case to the trial Court when the trial Court has disposed of

the suit on all aspects, but on reversal of the decree in

detail, retrial is considered necessary by the appellate

Court. So far as Order-41 Rule-25 of CPC is concerned, it

enables the appellate Court to frame or to 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 cases may accordingly frame the issues and refer the

same to the trial Court to take evidence and record the

findings on such issues and return to the appellate Court

for deciding the appeal. In such circumstances of the case,

the appellate Court retains the appeal to itself.

16. Reverting back to the facts of the case on hand,

the respondent/plaintiff has filed the sale deed along with

IA No.1 of 2022 stating that during pendency of the appeal

suit, the appellant/defendant has executed the sale deed

and that the appeal suit has become infrcutuous. It is

pertinent to state here that the son of the appellant/

defendant has filed the writ petition No.27569 of 2021

making certain wild allegations alleging that the appellant

is suffering from loss of memory and she is not maintaining

sound health, a direction was sought against the

Commissioner and Inspector General of Registration and

Stamps, Hyderabad. Accordingly, such direction was

issued, pursuant to such directions to the District

Registrar, Hyderabad caused enquiry and submitted a

report dated 28.02.2022. In addition to it, the son of the

appellant has filed IA No.1 of 2021 with a prayer to permit

him to pursue the appeal as next friend of the appellant

and he relied on the medical record filed along with IA No.2

of 2022.

17. In such facts and circumstances of the case, it

is felt essential to receive the medical record, orders of the

District Registrar and the alleged sale deed executed by the

appellant/defendant during pendency of the appeal.

Therefore, it is felt essential to remand the matter under

Order-41 Rule 25 of CPC with a direction to receive the sale

deed dated 22.07.2021, medical record filed along with IA

No.2 of 2022 and the copy of order in WP No.27569 of 2021

along with the proceedings of the District Registrar,

Hyderabad (South), competent authority under Section 82

of the Registration Act, vide proceedings No.G/5220/2021,

dated 28.02.2022 and to record a finding on the following

additional issue.

Additional Issue:

Whether the sale deed dated 22.07.2021 executed by the appellant/defendant is genuine or not?

The trial Court is directed to take/record all such

additional oral and documentary evidence as may be

required by giving reasonable opportunity to both the

parties in the Original Suit and shall return the evidence

together with its findings thereon and the reasons therefor

within a period of six months from the date of receipt of

copy of this order to this Court (appellate Court) for

deciding the appeal.

18. With the above observations and findings, all

these Interlocutory Applications i.e., I.A.Nos.1, 2 & 3 of

2021 and 1 & 2 of 2022 in CCCA No.69 of 2012 are

disposed of with a liberty to file necessary applications, if

any required before the trial Court and the learned Judge

of the trial Court shall consider the same on its own merits

being uninfluenced by the orders of this Court.

Accordingly, this appeal suit is remanded to the trial Court

under Order-41 Rule 25 of C.P.C. for limited purpose of

receiving the evidence, recording the findings on the above

additional issue and to return the suit to the appellate

Court within six months from the date of receipt of copy of

this order for deciding the appeal. The parties shall appear

before the trial Court i.e., learned XIII Additional Chief

Judge (Fast Track Court), City Civil Court, Hyderabad on

05.12.2022 for receiving the direction of the trial Court as

to further proceedings in the suit as indicated above.

However, in the circumstances of the case, there shall be

no order as to costs.

As a sequel, interlocutory applications, if any pending

in this appeal, shall stand closed.

__________________________________ A. VENKATESHWARA REDDY, J.

Date: 19.11.2022 Isn