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2008 DIGILAW 498 (AP)

B. K. S. R. Krishna Murthy v. B. Kutumba

2008-07-14

P.S.NARAYANA

body2008
JUDGMENT: Heard the counsel on record. 2. On 01.09.2006, this Court made the following order:- "Admit on the questions framed in grounds 2(c), (g), (h) and (i) of the Memorandum of appeal. The Second Appeal be processed and listed for hearing at its own turn." 3. The substantial questions of law framed in grounds 2(c), (g), (h) and (i) of the Memorandum of appeal read as hereunder:- "(c) Whether the judgments of the Courts below satisfy the requirements of Order XX C.P.C., thus, vitiating the entire proceedings? (g) Whether a suit can be decreed even without any evidence, discussion and the finding regarding the title and quantum of mesne profits? (h) Whether the first appellate Court is not required to discuss and render finding independently on each of the issues? (i) Whether the first appellate Court is not required to frame points for consideration on the issues and then render its finding on each of the points/issues by discussing the pleadings and the evidence independently?" 4. Sri J.Prabhakar, learned counsel representing the appellant/defendant, would maintain that the judgment made by the Court of first instance and also the judgment made by the appellate Court do not answer the essentials of the judgment at all. Learned counsel had taken this Court through the judgment of the Court of first instance and also the judgment of the appellate Court and would maintain that inasmuch as the serious questions are involved to be decided. in the suit, dismissal of the appeal recording such reasons cannot be sustained and, hence, it is a fit matter for remand. 5. On the contrary, Sri Kumar representing Sri P. Shiv Kumar, learned counsel representing the respondent, would maintain that the conduct of the parties if carefully examined would go to show that the appellant was not at all interested in proceeding with the matter and several adjournments had been granted and in the light of the same, it is not a fit matter where an order of remand to be made. 6. The substantial questions of law, on the strength of which the Second Appeal had been admitted, already had been specified supra. 7. The parties hereinafter would be referred to as shown in O.S.No.1764 of 2003 on the file of VIII Additional Senior Civil Judge, City Civil Court, Hyderabad. 8. The respondent herein is the plaintiff in the said suit. 6. The substantial questions of law, on the strength of which the Second Appeal had been admitted, already had been specified supra. 7. The parties hereinafter would be referred to as shown in O.S.No.1764 of 2003 on the file of VIII Additional Senior Civil Judge, City Civil Court, Hyderabad. 8. The respondent herein is the plaintiff in the said suit. It may be appropriate to have a glance at the judgment dated 25.07.2005 made in O.S.No.1764 of 2003 on the file of VIII-Additional Senior Civil Judge, City Civil Court, Hyderabad, and the same reads as hereunder:- "Costs not paid. Pw-1 is present. Defendant called. No representation. The cross examination of Pw-1 is treated as nil. Heard the counsel for the plaintiff. Perused the record, including the chief evidence of Pw-1 and documents marked. Suit claim is proved. Suit is decreed as prayed. Time for eviction 2 months." 9. Aggrieved by the same, the unsuccessful defendant carried the matter by way of appeal A.S.No.546 of 2005 on the file of III-Additional Chief Judge, City Civil Court, Hyderabad. The appellate Court, at paragraph 4, framed the following point for consideration:- "Whether the decree granted by the trial Court stands merits on any fact and law?" 10. The appellate Court recorded certain reasons at paragraph 5 and, ultimately, dismissed the appeal with costs. Aggrieved by the same, the present Second Appeal had been preferred. 11. The appellate Court arrived at a conclusion that it was a regular appeal under Section 96 C.P.C., and in an appeal against the ex parte decree, the appellant cannot be allowed to show that he was prevented by any sufficient cause from appearing on the date of hearing and for that purpose, such party may have to take recourse to the special procedure under Order IX Rule 13 of the Code of Civil Procedure. Further, it was recorded that there is sufficient evidence to establish the title of the plaintiff and there is no evidence to show that the plaintiff is divested of his title by any other mode or even by adverse possession in favour of the defendant or any one else claiming through the defendant. It was also recorded that atleast in the appeal, the defendant/appellant did not request the Court by filing any application to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. It was also recorded that atleast in the appeal, the defendant/appellant did not request the Court by filing any application to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. In the absence of any such prayer from the defendant, the oral submission made at the time of argument to remand the matter to give opportunity to the parties to adduce evidence cannot be entertained. In substance, these are the findings recorded by the appellate Court. 12. Before the Court of first instance, Pw.1 was examined and Exs.A1 to A6 had been marked. The judgment of the Court of first instance already had been specified supra. 13. The plaint schedule property is a house and the plaintiff and defendant are brothers. Their mother was the original owner of the plaint schedule property and the plaintiff purchased the property from his mother for a sum of Rs.28,000/- and part of the same was advanced by this department towards housing loan and his mother executed a registered sale deed on 10-06-1977 (Ex.A1). Exs.A2, A3, A4, A5 and A6 also had been relied upon. PW.1 gave evidence in chief and documents aforesaid had been marked. He was not cross-examined by the defendant's counsel and no doubt it was recorded that due to non-cooperation of the defendant either in cross-examining or in further proceeding with, the Court of first instance was left with no other option except to decree the suit in the light of the evidence of PW.1 already available on record recording the cross-examination as nil. The appellate Court recorded the reason that the appellant could have resorted to a remedy available under Order IX Rule 13 of C.P.C. However, when the defendant had chosen to file an appeal, especially, in the light of the nature of judgment, which was made by the Court of first instance, this Court is of the considered opinion that the party could have been given an opportunity, at least by putting the party on terms, by making some conditional order and the dismissing of the appeal may not be justified, in the peculiar facts and circumstances of the case. 14. Certain subsequent events also had been brought to the notice of this Court. 14. Certain subsequent events also had been brought to the notice of this Court. This Court is not inclined to express any opinion relating to the subsequent events and the parties are at liberty to adduce necessary evidence on subsequent events also before the Court of first instance. In the light of the same, the judgment and decree made by the Court of first instance and also the appellate Court are hereby set aside and the matter is remanded to the Court of first instance and let the Court of first instance give an opportunity to both parties to let in further evidence and decide the matter afresh in accordance with law, at the earliest point of time, preferably, within a period of six months from the date of receipt of a copy of this order. No order as to costs. 15. Since it is stated by Sri Kumar representing Sri P. Shiv Kumar, learned counsel for the respondent, that at present the schedule property is vacant land, in view of the facts and circumstances, let both parties maintain status quo till disposal of the suit, in accordance with law, by the Court of first instance.