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2023 DIGILAW 1530 (AP)

Mittapalle Venkata Ramana Reddy v. Chinna Boyanagari Muni Krishna Reddy (Died)

2023-12-08

K.MANMADHA RAO

body2023
JUDGMENT : The Appellant herein is the 2nd respondent/ 4th defendant before both the Courts below filed the present Civil Miscellaneous Appeal before this Court, aggrieved by the order dated 21.01.2021 in A.S.No.24 of 2014 in O.S.No.257 of 2008 on the file of the Court of the X Additional District Judge, Tirupati (in short ‘the first appellate court’). 2. The appellant herein is the 2nd respondent/ 4th defendant; the respondents 1 to 9 herein are the appellants/plaintiffs and respondents 10 to 12 are the respondents/ defendants, who are impleaded as per order of this Court dated 31.03.2022 in I.A.No.1 of 2022 and 13th respondent is the legal representative of deceased 11th respondent, who impleaded as per order dated 19.01.2023 in I.A.No.4 of 2022. 3. Initially plaintiffs filed a suit in O.S.No.257 of 2008 on the file of the court of Principal Junior Civil Judge, Tirupati (in short ‘the trial court’) against the defendants for specific performance of agreement of sale dated 12.06.1974 and for permanent injunction in respect of plaint schedule property. The said suit was dismissed. Assailing the same, the plaintiffs have filed A.S.No.24 of 2014 before the first appellate court. On hearing on both sides, the first appellate court allowed the appeal, by setting aside the decree and judgment of the trial court. 4. Heard Mr. A. Kishore Kumar, learned counsel for the appellant and Mr. M. Sri Atchyut, learned counsel, representing Mr. E.V.V.S. Ravi Kumar, learned counsel for the respondents. 5. During hearing learned counsel for the appellants would contend that the first appellate court erred in its judgment that an issue is omitted and that it needs to be framed and the matter is to be retried does not arise, through as per Code of Civil Procedure prescribes framing of issues and the evidence of the parties to be led in basing on the issues, but it is not mandatory that no finding can be given on a point where there is no formal issue framed by the Court, but it is a fact that both parties pleaded the same or one of the parties pleaded the same and put evidence and each party knows the case of the each other. In such a case, the first appellate court can decide based its judgment on the point involved though a formal issue is not framed by the trial court. 6. In such a case, the first appellate court can decide based its judgment on the point involved though a formal issue is not framed by the trial court. 6. It is further contended that the first appellate court erred in its judgment holding that the trial court has mentioned that 1st defendant’s chief examination was filed, but she did not turn up for the cross examination and the chief examination was eschewed and further held that the fact is that chief affidavit of defendant No.1 was not filed, but it was the chief affidavit of 4th defendant and the trial court was not even sure whose affidavit was filed, but the fact remains is that no witness on behalf of the defendants was examined and so it is nothing but a typographical mistake and it will not have any impact on merits of the case. The first appellate court without appreciating the evidence on record and it has got the power to re-appreciate the evidence recorded by the trial court, but instead of doing so, remanded the suit for retrial after framing an additional issue is erroneous and illegal. Therefore the impugned judgment of the first appellate court is based on mere surmises and not in accordance with law. Therefore C.M.A is liable to be allowed. 7. Whereas, learned counsel for the respondents reiterated the contentions urged before the courts below and mainly contended that the first appellate court by relying on a decision of the Hon’ble Apex Court in “Kamal Kumar v. Premalatha Joshi and Others”, 2019(1) ALD 181 (SC) and came to a conclusion that proper issues have to be framed for arriving at a right decision. In the instant case the issues relating to readiness and willingness as well as bonafide purchase by 4th defendant were not framed. Further 4th defendant has not reported that he has no evidence to adduce, but in fact he had filed chief affidavit and opportunity should be given to him for marking the documents after which opportunity should have been provided to the opposite party to cross examine DW-1. Further 4th defendant has not reported that he has no evidence to adduce, but in fact he had filed chief affidavit and opportunity should be given to him for marking the documents after which opportunity should have been provided to the opposite party to cross examine DW-1. Further held that the trial court observed that 1st defendant filed affidavit instead of 4th defendant which shows that the trial court was not even sure as to who filed the chief affidavit and has pronounced judgment without providing sufficient opportunity to the parties for adducing evidence through the oral and documentary evidence is the basis upon which a judgment has to be delivered. Therefore the first appellate court rightly discussed the issue in right perspective and remanded the suit to the trial court for fresh disposal. Therefore the C.M.A is liable to be dismissed. 8. In support of their contentions, learned counsel for the respondents placed on record the decision of Hon’ble Apex Court in “Remco Industrial Workers House Building Co-operative Society v. Lakshmeesha M. and Others”, (2003) 11 SCC 666 , wherein it was held as follows : “18. From the above resume of facts and the nature of orders of grants of occupancy rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28-5-1965 (Ext.D-3) in favour of the tenant Muniyappa on the subsequent grant dated 9-12-1969 (Ext.P-1) in favour of the plaintiff- respondent was neither addressed to by any of the courts below nor has a decision been rendered on the same. The issue of effect of Ext.D-3 on Ext.P-1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of the Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial court and which appears to the appellate court essential to the right decision of the case. Rule 23-A Order 41 introduced by CPC Amendment Act 104 of 1976 w.e.f. 1-2-1977 confers powers on the appellate court to remand the whole suit for retrial. Rule 23-A Order 41 introduced by CPC Amendment Act 104 of 1976 w.e.f. 1-2-1977 confers powers on the appellate court to remand the whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23-A CPC”. 9. Perused the record. 10. As could be seen from the impugned order of the first appellate court, it is observed that the trial court has not framed the issue “whether the plaintiffs were ready and willing to perform their part of contract or not”. The first appellate court rightly held that in a suit where the total consideration amount was paid and possession was delivered, it is within the discretion of the court to see whether such averment and proof is necessary or not. However, as there is averment regarding readiness and willingness the trial court, should have framed an issue on that aspect. Further the trial court also not framed the issue as to “Whether 4th defendant was a bonafide purchaser for value or not?’. When there is a subsequent purchaser and a subsequent agreement, then it is the duty of the court to frame such issue and it is to be decided whether the subsequent transfer was for value and whether the money was paid in good faith without notice of original contract. The burden is on the subsequent purchaser to prove that he is a bonafide purchaser for value without notice of earlier contract. 4th defendant has taken a plea that he was a bonafide purchaser for value, but no issue was framed and the said aspect was not dealt with by the trial court. Therefore, the trial court has not framed proper issues in the suit and that the first appellate court rightly set aside the judgment of the trial court and remanded the suit for fresh disposal. 11. In view of the foregoing discussion, this Court finds no merit in the argument of learned counsel for the appellants. Therefore, the C.M.A is deserves to be dismissed, with a direction to the trial court to dispose of the suit in terms of the impugned judgment of the first appellate court. Further both the parties to the suit are directed to co-operate with the trial court for disposal of the suit at the earliest, since the suit is of the year 2008. Further both the parties to the suit are directed to co-operate with the trial court for disposal of the suit at the earliest, since the suit is of the year 2008. 12. With the above direction, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.