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2023 DIGILAW 1339 (AP)

Nellore Vijaya (Died v. Singiri Lokanadham

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT 1. The Appellants herein are the respondents/ plaintiffs before both the Court below filed the present Civil Miscellaneous Appeal before this Court. 2. Aggrieved by the order dtd. 11/10/2022 in A.S.No.11 of 2018 on the file of the Court of Principal District Judge, Nellore, SPSR Nellore District (in short 'the first appellate court') against the Judgment and Decree and Judgment in O.S.No.278 of 2011 on the file of I Additional Junior Civil Judge, Nellore, (in short "the trial court') remanding the suit for fresh disposal. 3. Initially the plaintiffs filed the suit for grant of permanent injunction against the respondent/ defendant in respect of plaint schedule property and during the trial sole plaintiff died and on her death, the 2nd plaintiff added as her legal representative. The trial court holding that the 2nd plaintiff proved her title to the suit property, besides proving her possession over the suit schedule property and that the suit was decreed as prayed for on 6/11/2017. Assailing the said order, the respondent/ defendant has preferred A.S.No.11 of 2018 before the first appellate court. 4. The first appellate court has framed the following point for determination would be is: Whether the respondents are entitled for permanent injunction restraining the appellant/ defendant from interfering with his peaceful possession and enjoyment over the suit schedule property as decreed by the lower court? 5. The first appellate court arrived at just conclusion and holding that in view of the fact that the appellant i.e respondent herein is seeking frame of additional issue at the stage of appeal, the fact remains it needs giving opportunity to the parties to lead further evidence is essential in the appeal. The respondent herein may raise about receiving additional documents and additional issues before the trial court. Therefore the appeal was partly allowed by setting aside the judgment and decree of the trial court, by remanding the suit for fresh disposal after giving opportunity to both parties to lead further evidence, if any and then decide the merits of the suit without influencing the observations in the appeal and directed the trial court to dispose of the suit within three months. Assailing the same, the present C.M.A came to be filed. 6. Heard Sri S. Lakshmi Narayana Reddy, learned counsel for the appellants and Sri P. Ganga Rami Reddy, learned counsel for the respondent. 7. Assailing the same, the present C.M.A came to be filed. 6. Heard Sri S. Lakshmi Narayana Reddy, learned counsel for the appellants and Sri P. Ganga Rami Reddy, learned counsel for the respondent. 7. During hearing learned counsel for the appellants would contend that the first appellate court has remanded the matter for fresh disposal holding that the respondent had filed additional documents with regard to death certificates of Syed Rasool Saheb and Zahera Beebe, who had executed General Power of Attorney in favour of the 1st plaintiff and Ex.A10 the Rectification Deed was executed through agent is invalid and without marking those death certificates and without cross examination on those documents and the matter is remanded having held that though the stand of the appellant in the trial court is not that in view of death of Zahera Beebe and Syed Rasool Saheb the Ex.A10 is rectification deed is invalid. Therefore the first appellate court ought not to have remanded the matter. 8. It is further contended that the lower appellate court ought to have seen that Ex.A10 dtd. 28/12/2016 executed during pendency of the suit and the plaint has been amended and the same has been marked as under Ex.A10 at any point of time the respondent/ appellant did not take any objection either for amendment of the plaint or for marking of rectification deed and as such it is not open for the respondent/ defendant to dispute Ex.A10 document and as such the first appellate court erred in remanding the matter though Ex.A10 rectification deed is very much available on record to adjudicate the issue with regard to validity of Ex.A10 as alleged by respondent/ defendant. Therefore there is no need or necessity to remanding the matter. As such, remanding the suit for fresh disposal is highly unsustainable as per law or on facts. Therefore, requested to allow the C.M.A. 9. Whereas, learned counsel for the respondent mainly contended that this respondent is claiming right over the plaint schedule survey number and the trial court has not marked the certified copies of documents which is in favour of his son, though which are in the record. Further PW-1 was suggested during his cross examination that litigation was pending in respect of suit schedule property among other properties in O.S.No.452 of 2006 and A.S.No.32 of 2008 before the courts below, which are not on record. Further PW-1 was suggested during his cross examination that litigation was pending in respect of suit schedule property among other properties in O.S.No.452 of 2006 and A.S.No.32 of 2008 before the courts below, which are not on record. Therefore the first appellate court was rightly set aside the decree and judgment of the trial court and remanding the suit for fresh disposal after giving fair opportunity to both the parties and then decides the suit on merits. Therefore the C.M.A is not maintainable and same is liable to be dismissed. 10. Perused the record. 11. Learned counsel for the appellants placed on record the decision of the Hon'ble Apex Court in "Arvind Kumar Jaiswar (Died) through L.R v. Devendra Prasad Jaiswal Varun",Indian Kannnon.org/doc/33980809/. wherein it was held as follows:- "An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no Signature Not Verified Digitally signed by real trial of the dispute or there is no complete or effectual BABITA PANDEY Date: 2023.02.14 18:17:56 IST Reason: adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/ or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/ issue in terms of Rule 25 of Order XLI, which then can be taken on record for deciding the case by the appellate court". In the case "Narayanan vs. Kumaran and Others", (2004) 4 SCC 26 . wherein the Hon'ble Apex Court held as follows: "17. In the case "Narayanan vs. Kumaran and Others", (2004) 4 SCC 26 . wherein the Hon'ble Apex Court held as follows: "17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43, rule 1 clause(u) should be heard only on the ground enumerated in Sec. 100." 12. As could be seen from the impugned order of the trial court that the first appellate court held that when there is serious cloud regard title, mere suit for injunction simplicitor is not maintainable as the some of the documents were not marked during the trial, which were available in the record. Further held that though the stand of the appellant in trial court is not that in view of death of Smt. Zahira Babi and Sri Syed Rasool Saheb Ex.A10 rectification deed executed by through General Power of Attorney holder is invalid, the said stand was taken by the appellant therein by filing death certificates of both Smt. Zahira Babi and Sri Syed Rasool Saheb by filing a petition under order 41, rule 27 CPC without marking the said documents, without cross examination in respect of validity and evidential values of the same, they cannot be straight away mark in the appeal, since Ex.A3 original sale deed was executed by PW-5, Smt. Zahira Babi and Sri Syed Rasool Saheb under Ex.A8 General Power of Attorney in favour of 1st plaintiff. But the there is no need or necessity to remand back the suit to the trial court, as it can be considered in the appeal itself as per the decisions cited supra. 13. The first appellate court have jurisdiction to deal with the above said aspects in the appeal itself, if it is not discussed by the trial court as contended by the respondent herein. 13. The first appellate court have jurisdiction to deal with the above said aspects in the appeal itself, if it is not discussed by the trial court as contended by the respondent herein. But the first appellate court came to a wrong conclusion by remanding the suit for fresh disposal, which is unwarranted. The first appellate court has to take into consideration of the grounds urged by the appellant therein along with relevant documents, which are already on record. Therefore no further evidence is required to that extent only. 14. In view of the above said circumstances, the decisions cited by the appellants are applicable to the facts of this case. Therefore, this Court finds the first appellate court has not dealt with the issue in a right perspective and there is clear error apparent on the face of the judgment. Therefore, the C.M.A is deserves to be allowed. 15. In view of the foregoing discussion, the Civil Miscellaneous Appeal is allowed, while directing the first appellate court to consider those aspects (which are referred in the grounds of appeal before the first appellate court) and decide the appeal on merits, within six (06) weeks from the date of receipt of a copy of this order. The impugned Judgment of the first appellate court dtd. 11/10/2022 is hereby set aside. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.