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2024 DIGILAW 1210 (AP)

Andhavarapu Govinda Rajulu v. Nabeen Kumar Sahu

2024-08-28

B.SYAMSUNDER

body2024
JUDGMENT : B. SYAMSUNDER, J. 1. This Civil Miscellaneous Appeal is filed by the appellants/plaintiffs, against the Judgment and Decree passed by the learned Principal District Judge, Srikakulam in AS No. 71 of 2000, dated 06.11.2006, which preferred by the respondents herein against the Judgment and Decree passed in OS No. 227 of 1995, dated 20.06.2000. The learned Principal District Judge, Srikakulam remanded OS No. 227 of 1995 to the trial Court for fresh disposal after considering the documents, filed by the respondents/defendants. 2. The present Civil Miscellaneous Appeal is filed by the appellants/plaintiffs in OS No. 227 of 1995 challenging the remand Order passed by the learned Principal District Judge, Srikakulam. 3. The appellants and the respondents hereinafter referred to as plaintiffs and defendants as arrayed before the trial Court. 4. The plaintiffs instituted the suit for eviction of the defendant Nos.1 to 6 from plaint ‘A’ schedule property, and for recovery of arrears of rent with interest and also claimed future damages for use and occupation of plaint ‘A’ schedule property by the defendants from the date of suit, till the delivery of possession of the properties. 5. After full-fledged trial, the trial Court decreed the suit, directing the defendants to evict from the plaint ‘A’ schedule property and deliver possession of the same to the plaintiffs, within two months from the date of decree, and they were also directed to pay arrears of rent and damages with interest till delivery of possession of plaint ‘A’ schedule property. 6. Against the Judgment and Decree passed by the trial Court, the defendants filed AS No. 71 of 2000 on the file of Principal District Court, Srikakulam, wherein the defendants appears to have been filed IA No. 1678 of 2001 under Order 41, Rule 27 of CPC to receive additional evidence, which was said to be dismissed by the First Appellate Court. Against which, the defendants appears to have been filed CRP No. 5408 of 2004, wherein this Court said to be directed the First Appellate Court to receive additional evidence, subject to proof and relevancy. Then, the defendants who are the appellants before the First Appellate Court filed IA No. 1813 of 2006 under Order 18, Rule 17 of CPC to recall PW-1 for further cross-examination with reference to the contents of said documents. The First Appellate Court passed following Order at Para Nos. Then, the defendants who are the appellants before the First Appellate Court filed IA No. 1813 of 2006 under Order 18, Rule 17 of CPC to recall PW-1 for further cross-examination with reference to the contents of said documents. The First Appellate Court passed following Order at Para Nos. 6 and 7, which reads as under: “6. Aggrieved by the said dismissal Order in IA No. 1678/2001 the appellants approached the Honourable High Court and the Honourable High Court after considering the matter, set aside the dismissal Order of this Court and directed that the aforesaid documents be received as additional evidence in the appeal, subject to proof and relevancy in its Order dated 08.03.2006 in CRP No. 5408/2004. The appellants in view of the said Orders of the Honourable High Court filed petition in IA No. 1813/2006 under Order 18 Rule 17 praying to recall PW-1 for cross-examination with reference to the contents of the said documents. 7. In the facts and circumstances of the case as already stated above, this Court is of the view that the matter may be remanded back to the trial Court for fresh disposal after duly considering the above documents viz. (1) Photostat copy of the registered Will dated 05.05.1994 executed by Baratam Lakshminarayana alias Thoudu; (2) Registered extract of the Will dated 05.05.1994 executed by Baratam Lakshminarayana alias Thoudu and (3) Certified copy of the final decree in IA No. 378/1978 in OS No. 20/1974 on the file of Principal Subordinate Judge, Srikakulam dated 26.04.1994. Since the matter pertains to the year 1995, the learned Principal Junior Civil Judge, Srikakulam is directed to take steps to dispose of the matter as expeditiously as possible. In the circumstances, there is no order as to costs. Accordingly, the appeal is disposed of.” 7. Against the said Orders passed by the First Appellate Court remanding OS No. 227 of 1995 to the trial Court for fresh disposal after considering the documents, this present Civil Miscellaneous Appeal is preferred by the plaintiffs, who are the respondents before the First Appellate Court, stating that the First Appellate Court without assigning any reasons, remanded the case to the trial Court for fresh disposal. They have stated that the First Appellate Court cannot remand the matter without plausible reason, which is contrary to Order 41 of CPC. They pray to allow the appeal. 8. They have stated that the First Appellate Court cannot remand the matter without plausible reason, which is contrary to Order 41 of CPC. They pray to allow the appeal. 8. During pendency of this appeal, the appellant No. 3 and 4 appears to have been purchased plaint schedule property from the appellant Nos. 1 and 2, who filed petition in IA No. 1 of 2019, which was allowed by this Court, vide Orders dated 04.01.2024. 9. The learned Senior Counsel Mr. D. Srinivas, representing on behalf of Mr. A.S.K.S. Bhargav, learned Counsel for the appellants/plaintiffs submitted arguments in this appeal along with connected cases in AS No. 413 of 2001 and SA No. 631 of 2011 would submit that the Order passed by the learned First Appellate Judge remanding the suit to the trial Court is against the provisions of Order 41, Rule 28 of CPC. He would further submit that the First Appellate Court ought to have received the additional evidence and recorded the evidence by following the procedure laid down under Order 41, Rule 28 of CPC, which failed to consider by the First Appellate Court, and without assigning any reasons remanded the case to the trial Court for fresh disposal, which caused much prejudice to the contentions of the plaintiffs, who filed suit for eviction, who could not recover the possession from the tenants in spite of they got a decree in their favour. He prays to allow the appeal. 10. The learned Senior Counsel Mr. P. Veera Reddy, representing on behalf of Mr. Karri Murali Krishna, learned Counsel for the respondents would submit that the First Appellate Court rightly remanded the case to the trial Court in view of filing additional evidence petition for recall PW-1. He prays to dismiss the appeal. 11. Now the point that emerges for consideration of this Court is: “Whether the Judgment and Decree passed by the First Appellate Court in AS No. 70 of 2000 remanding OS No. 227 of 1995 to the trial Court is sustainable either in law or on facts?” 12. POINT: Before going to the merits of the case, it would be beneficial to quote Order 41, Rules 23 and 28 of CPC, which reads as under: “23. POINT: Before going to the merits of the case, it would be beneficial to quote Order 41, Rules 23 and 28 of CPC, which reads as under: “23. Remand of case by appellate court: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 28. Mode of taking additional evidence: Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.” 13. When necessary evidence is available and necessary issues are already framed by the trial Court, the Appellate Court shall not remand the matter to the trial Court for fresh disposal, which certainly would cause prejudice to the party, who succeeded before the trial Court. The reasons assigned by the learned First Appellate Judge as referred supra, which shows that who remanded the suit to the trial Court only on the ground that receiving of additional evidence petition has been allowed by this Court, and thereafter the defendants have filed petition to recall PW-1 for further cross-examination with reference to the documents, which they filed as an additional evidence. 14. A perusal of Order 41, Rule 28 of CPC, which makes it clear that whenever additional evidence is allowed to be produced, the Appellate Court can take such evidence or direct the trial Court, to take such evidence and send it to the First Appellate Court for disposal of the first Appeal. There is no necessity for remanding the entire suit for fresh disposal. There is no necessity for remanding the entire suit for fresh disposal. The learned First Appellate Judge has not discussed the contention of the defendants in the suit, and no legally valid reason is assigned for remanding the suit to the trial Court, and failed to follow the procedure laid down under Order 41, Rule 28 of CPC. 15. After considering the nature of the suit and issues framed by the trial Court, it appears that sufficient material is available before the First Appellate Court to decide the appeal by following the procedure laid down under Order 41, Rule 31 of CPC by framing an appropriate points for determination, which failed to follow by the learned First Appellate Judge. Therefore, the Judgment and Decree passed by the First Appellate Court, remanding the original suit OS No. 227 of 1995 without following the procedure laid down under Order 41, Rule 28 of CPC are not sustainable either in law or on facts, which are liable to be set-aside. 16. In the result, this Civil Miscellaneous Appeal is allowed. The Judgment and Decree passed by the First Appellate Court in AS No. 71 of 2000 on the file of Principal District Judge, Srikakulam are hereby set-aside. The learned Principal District Judge, Srikakulam shall restore AS No. 71 of 2000 on its file and follow the procedure laid down under Order 41, Rule 28 of CPC while receiving additional evidence, and dispose of the appeal as expeditiously as possible within a period of Three (03) months from the date of receipt of orders of this Court in the present appeal. Both parties shall appear before Principal District Court, Srikakulam on 17.09.2024 at 10.30 a.m. No order as to costs. Consequently, all pending miscellaneous petitions, if any, shall stand closed. The Interim Orders granted earlier, if any, shall stand vacated.