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2023 DIGILAW 1033 (KAR)

Lakshmidevi v. Siddarthakumar Bohra

2023-08-31

H.T.NARENDRA PRASAD

body2023
JUDGMENT 1. This appeal under Order XLIII Rule 1(u) of CPC filed by the defendant challenging the judgment dtd. 28/3/2023 passed by the Senior Civil Judge and JMFC, Holenarasipura in R.A.No.31/2021 whereby the appeal is allowed and the matter has been remitted back to the trial Court for fresh consideration. 2. For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court. 3. The plaintiff has filed the suit for declaration of title and mandatory injunction in O.S.No.291/2012. The trial Court by judgment and decree dtd. 29/9/2020 has been dismissed the suit. Being aggrieved by the same, the plaintiff has filed the regular appeal before the Senior Civil Judge and JMFC, Holenarasipura in R.A.No.31/2021. Along with the appeal, he has filed I.A.No.II under Order VI Rule 17 read with Sec. 151 of CPC and I.A.No.III under Order XLI Rule 27 of CPC. The First Appellate Court by judgment dtd. 28/3/2023, has allowed both applications and set aside the judgment and decree passed by the trial Court and the matter has been remitted back to the trial Court for fresh consideration. Being aggrieved by the same, the defendant is before this Court in this appeal. 4. Learned counsel appearing for the defendant has contended that I.A.No.II filed under Order VI Rule 17 read with Sec. 151 of CPC has been allowed without assigning any reasons and permitted the plaintiff to amend the plaint, by which the entire cause of action will be changed. He further contended that even while allowing I.A.No.III filed under Order XLI Rule 27 of CPC, the First Appellate Court has not given any reason. The judgment passed by the First Appellate Court is without any application of mind. He further contended that even the First Appellate Court has the power to frame additional issue and permit the parties to adduce additional evidence and decide the appeal on merit without remanding the matter to the trial Court. In support of his contention, he has relied upon the judgment of this Court in the case of SHANTHAVEERAPPA VS. K. N. JANARDHANACHARI reported in ILR 2007 KAR 1127. Hence, he sought for allowing the appeal. 5. Per contra, the learned counsel appearing for the plaintiff has contended that by allowing I.A.No.II filed under VI Rule 17 of CPC, it will not change the nature of relief sought in the suit. K. N. JANARDHANACHARI reported in ILR 2007 KAR 1127. Hence, he sought for allowing the appeal. 5. Per contra, the learned counsel appearing for the plaintiff has contended that by allowing I.A.No.II filed under VI Rule 17 of CPC, it will not change the nature of relief sought in the suit. Earlier, the plaintiff has sought for relief of declaration in respect of 28 guntas. Now it has been reduced to 3 guntas. Therefore, there is no any change in the boundaries. He further contended that during the pendency of the suit, there was subsequent development, the same has been produced by filing I.A.No.III under Order XLI Rule 27 of CPC. The First Appellate Court has rightly allowed the applications and remanded the matter for fresh consideration. Hence, he sought for dismissal of the appeal. 6. Heard the learned counsel for the parties. Perused the judgment and decree. 7. It is not in dispute that the plaintiff has filed the suit for declaration of title and mandatory injunction in respect of suit schedule property measuring 28 guntas. The trial Court by judgment and decree dtd. 29/9/2020 has dismissed the suit. Being aggrieved by the same, the plaintiff has filed the regular appeal in R.A.No.31/2021 before the Senior Civil Judge and JMFC, Holenarasipura. The plaintiff has filed I.A.No.II under Order VI Rule 17 of CPC seeking amendment of plaint on the ground that during the pendency of the suit, some portion of the suit schedule property has been sold. Therefore, he wants to amend the plaint. He has also filed I.A.No.III under Order XLI Rule 27 of CPC for production of additional documents which are related to subsequent event. During the pendency of the suit, he has sold some portion of the property. The First Appellate Court considering the material available on record, has rightly allowed I.A.No.II and I.A.No.III. 8. This Court in the case of SHANTHAVEERAPPA VS. K. N. JANARDHANACHARI reported in ILR 2007 KAR 1127 has held in paragraph Nos.11 and 12 as follows: "11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice. 12. Unfortunately, the first Appellate Courts are not appreciating these statutory provisions in proper perspective. Though the first Appellate Courts are vested with this unlimited power, greater the power, greater should be the care and caution which should be exercised by the Appellate Court in exercise of such power. Especially, the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first Appellate Court to decide the case on merits finally. When the trial Courts are over burdened with the cases, the first Appellate Courts which are better placed and presided over by Judges with greater experience, should take upon themselves the responsibility of recording evidence and decide the case on merits, thus shortening the length of litigation. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. Therefore, it is impressed upon the first Appellate Courts, that they would be doing a great service in the course of fight against delay in disposal of cases, by accepting the challenge, exercise their appellate power judiciously, receive and record additional evidence and decide the cases finally. They should avoid this temptation of remand on some pretext or other. They should demonstrate their resolve to shoulder responsibility and commitment in rendering justice to the litigant who is knocking at the door of temple of justice patiently in anticipation of a just decision. Judges should decide the lis. This would be one of the ways of not only reducing the delay in disposal of cases, but also avoiding docket explosion, within the existing legal frame work." 9. In view of the above, remanding the matter by the First Appellate Court to the trial Court, is unsustainable. 10. Accordingly, I pass the following order: a) The appeal is allowed. b) The order dtd. 28/3/2023 passed in R.A.No.31/2021 by the Senior Civil Judge and JMFC, Holenarasipura in respect of setting aside the judgment and decree dtd. 29/9/2020 in O.S.No.291/2012 passed by the Additional Civil Judge and JMFC, Holenarasipura is set aside and remanding the matter by the First Appellate Court to the trial Court is also set aside. c) The order passed by the First Appellate Court in respect of I.A.Nos.II and III are hereby confirmed. d) The First Appellate Court is directed to permit the plaintiff to amend the plaint and also permit the defendant to file the written statement, if necessary. e) The First Appellate Court shall frame the additional issue, if necessary. f) If the parties intends to adduce evidence and produce additional documents, the First Appellate Court shall permit them to do so. g) Thereafter, the First Appellate Court is directed to decide the matter, in accordance with law. 11. In view disposal of the main appeal, all pending applications do not survive for consideration. Hence, the same are also disposed of.