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2014 DIGILAW 14 (KAR)

Hajarabegum v. Kutubuddin Masimsab Jamadar

2014-01-06

A.V.CHANDRASHEKARA

body2014
JUDGMENT A.V. Chandrashekara, J. 1. By consent of the learned Advocates appearing for the parties, the matter is taken up for final disposal. This Miscellaneous Second Appeal is directed against the judgment of the first appellate Court passed by the learned I Addl. Senior Civil Judge, in R.A. No. 10/2010. The appellant herein was the respondent in the said appeal and plaintiff in the Trial Court. Parties will be referred to as plaintiff and defendants as per their ranking in the Trial Court. 2. Plaintiff had filed a suit for mere permanent injunction on the basis of possession vide O.S. No. 46/2003 which was pending on the file of the Court of the Addl. Civil Judge (Jr.Dn.), Gokak. It was in respect of agricultural land measuring 1 acre in Sy.No. 81/2 of Chigadolli Village, Gokak Taluk. The said suit had been filed on the basis of an agreement of sale stated to have been executed by first defendant herein vide agreement dated 06.06.1987. On the basis of the protection available under Section 53A of the Transfer of Property Act, permanent injunction had been sought for and it was granted by the Trial Court on 23.01.2010 vide considered judgment based on the finding relating to three issues i.e., about lawful possession, interference and entitlement. This judgment was called in question under Section 96 of CPC before the Court of Senior Civil Judge, Gokak and the same was assigned to the I Addl. Senior Civil Judge, Gokak and numbered as R.A. No. 10/2010. 3. The learned Counsel for the appellant herein has filed the certified copy of the order sheet mentioned in R.A. No. 10/2010. The order sheet dated 12.10.2012 discloses that on behalf of the appellant therein as many as three applications had been filed. One was I.A. No. II filed under Order 8, Rule 1 of CPC along with the written statement with a request to take the same on file, I.A. No. III under Order 41, Rule 27 CPC and I.A. No. 4 with a similar application under Order 41, Rule 27. A memo had also been filed with one document. The learned Judge of the First Appellate Court had heard the arguments on merits and has chosen to allow the appeal by setting aside the judgment and decree passed in O.S. No. 46/2003. A memo had also been filed with one document. The learned Judge of the First Appellate Court had heard the arguments on merits and has chosen to allow the appeal by setting aside the judgment and decree passed in O.S. No. 46/2003. The matter was remanded to the Trial Court under Order 41, Rule 25 of CPC with a direction to substitute the issues as indicated in the judgment vide paragraph- 19 and also to give an opportunity for the parties to adduce additional evidence on the basis of recasted issues. It is this judgment of the appellate Court dated 18.03.2003 which is called in question on various grounds as set out in the appeal memo. 4. Admittedly the remand so made is an open remand. Three applications filed by the respondents herein who were appellants in the First Appellate Court have not been considered. Fresh issues have been framed by the Appellate Court and they are forthcoming in para-19 at page No. 13 of the impugned judgment. As many as seven issues have been framed as though it was a regular suit for specific performance of the contract though the suit is for mere permanent injunction. There is a direction to take these issues and give opportunity for the parties to adduce additional evidence. Nothing is forthcoming as to whether I.A. filed under Order 41, Rule 27 of CPC have been considered or not. It is also not forthcoming as to whether the application under Order 6, Rule 17 of CPC is considered or not. 5. In fact the records do disclose that the application filed under Order 8, Rule 1 CPC along with the written statement of defendant No. 2 is not at all taken on file. Such being the case, it is understandable as to how second defendant could adopt the written statement of the first defendant, which was not at all taken on file. 6. Anyhow, the first appellate Court has all the trappings of a Trial Court deeding with an original suit. Nothing comes in the way of the First Appellate Court to consider an application under Order 6, Rule17 of CPC for amendment and for recording additional evidence on the basis of production of documents in the First Appellate Court or for recasting of issues. A caution has been given by this Court in Shantaveerappa Vs. K.N. Janardhanachari reported in ILR 2007 Kar 1127. A caution has been given by this Court in Shantaveerappa Vs. K.N. Janardhanachari reported in ILR 2007 Kar 1127. Paragraph-10 of the said judgment at page No. 1133 is relevant and the same is extracted below: 10. In cases where the trial Court has omitted to frame or try any issue or to determine any question of fact, the Appellate Court 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 with a direction to return the evidence to the Appellate Court together with findings thereon and the reasons therefor within a time to be fixed by the Appellate Court. On receipt of such finding the Appellate Court may dispose of the appeal on merits. Here it would be a case of limited remand and not an open remand. In case where the Appellate Court feels issues have to be resettled and that the trial Court has proceeded wholly upon some ground other than that on which the Appellate Court proceeds, still the evidence upon the record is sufficient, the Appellate Court without resorting to an order of remand resettle the issues and pronounce judgment on merits on all issues. Therefore, it is clear the legislature has provided for all contingencies. 7. In paragraph-12 of the said decision in Shantaveera's case, it is made clear that the First Appellate Court will normally be presided over by an experienced Judge, who would have put in not less than ten years of service. First Appellate Court will have all the powers not only to record evidence but also to get the evidence recorded by the Trial Court and a report is solicited to that effect. First Appellate Court has the power to recast the issues or frame additional issues and consider the application filed for amendment and effect necessary amendment also. As rightly pointed out by the learned Counsel for the defendants, it is a moot point as to whether the issues so framed by the First Appellate Court would really require any (sic) suit for injunction. Suffice to state that the approach adopted by the Trial Court is not consistent with the tone and tenor of the mandate of Order 41, Rules 23 and 23A of CPC and caution given by this Court in Shantaveera's case. Suffice to state that the approach adopted by the Trial Court is not consistent with the tone and tenor of the mandate of Order 41, Rules 23 and 23A of CPC and caution given by this Court in Shantaveera's case. Hence the appeal will have to be allowed and the impugned judgment passed by the First Appellate Court will have to be set aside. ORDER Appeal is allowed. Impugned judgment passed by the learned First Appellate Judge in R.A. No. 10/2010 is set aside with a direction to consider all the pending applications filed under Order 6, Rule17 of CPC, Order 8, Rule 1 of CPC and Order 41, Rule 27 of CPC. The Trial Court shall also keep in mind the mandate of the Hon'ble Supreme Court in regard to production of additional evidence in the First Appellate Court under Order 41, Rule 27 of CPC in the case of Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 . The First appellate Court shall also reconsider the aspect of framing additional issues, more especially suit being one for permanent injunction only. As the suit is of the year 2003 and ten years have elapsed, the learned First Appellate Judge shall expedite the matter and dispose of the matter within an outer limit of six months from the date of receipt of a copy of this judgment. The parties are directed to co-operate with the Court for early disposal of the appeal. All other contentions are kept open for the parties to agitate the same before the First Appellate Court. Parties to bear their own costs.