Allowed

Polimera Bharathi v. Kayapati Laxmidevi

Andhra Pradesh HC18 Jan 2023CMA/643/2016

Case brief

AI extract

What is this about?

The High Court allowed the Civil Miscellaneous Appeal, setting aside the lower appellate court's order remanding the suit. The Court held that remand for non-joinder of necessary parties violates Order 1 Rule 9 CPC and cannot be used to cure evidence lacunae under Order 41 Rule 23. The matter was remanded to the lower appellate court for fresh disposal.

What did the court decide?

Appeal allowed; remand to lower appellate court for fresh disposal based on this Court's observations and cited judgments.

Polimera Bharathi Vs Kayapati Laxmidevi — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AIWARAVATI

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WEDNESDAY ,THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAC

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CIVIL MISCELLANEOUS APPEAL NO: 643 OF 2nifi

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Between:

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Proddttur^ViZoo'Sn Housewife , R/o. Puli proddatur Village. Tadipatri Mandal, Anantapuramu District.

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...Appellant/2"'^ Respondent/2"^ Respondent AND

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^ P(?XaSr y®®*'® Hindu, Cultivation, K/0. Full Proddatur Village. Tadipatri Mandal. Anantapuramu District.

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Ranga Reddy. S/o. Polimera Pulla Reddy ^ PuHaiah

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Arantapuramu DiS,‘'°"'

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Juturu RamOTohan Reddy, S/o. Hanumantha Reddy aged 41 vears Cutoation, R/o. Puii Proddatur Village, Tadipatri Ma'ndafrantepu^ramu

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...Respondents/respondents 1,3, & 4/Defendans 1,3,^&4

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(R2 to R4 are not necessary parties)

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LA. NO: 2 OF 2016ICMAMP. NO: 573 OF 2nifi)

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in the aSrt fited ip®=%Y“oV-.h-^oep"on'"?'5® '=i^®®"’®‘ances^stated stay all further proceedlntsln OS No gs olToo^r flirof Tadipatri pending disposal of the CMA MP No.190 of 201? 9®'

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LA. NO: 5 OF 2016fCMAMP. NO: 1318 QF 2Q1fi)

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Tadpatri pending dispLal ot the CM^ "

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Counsel for the Appellant: SRI. VIRUPAKSHA DATTATREYA GOUDA

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Counsel for the Respondents: None appearedr

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The Court made the following:

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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CIVIL MISCELLANEOUS APPEAL No. 643 OF 2016

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JUDGMENT:

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The Plaintiff filed suit against the defendants for declaration of right and title over plaint A and B Schedule properties, for recovery of possession, mandatory injunction, removal of the structures made in Schedule-A and Schedule B properties^andthe compound wall constructed around Schedule A & B properties^and for consequential relief of permanent injunction restraining^the defendants and their men from over interfering with and disturbing m any way from the peaceful and lawful possession over the plaint B Schedule properties and for cost of the suit. 2. The detailed facts of the suit averments are not necessary^for dispose of the Civil Miscellaneous Appeal. The Trial Court has framed the following issues:

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Whether the plaintiff is entitled for declaration of right and title over the A and B schedule properties by virtue of sate deed dated 15.07.2008?

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Whether the plaintiff is entitle for recovery of possession from the defendants in respect of A Ss B Schedule properties?

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Whether the plaintiff is entitled for permanent injunction as prayed for?

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Whether the plaintiff is entitled to grant mandatory injunction directing the defendants to remove the unlawful construction made in A & B Schedule properties?

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After considering, the evidences adduced by both the parties, the trial court negative all the issues and eventually^dismissedthe suit filed by the plaintiff. Aggrieved by the said judgment and decree dated 12.12.2014 in 0;S. No.58, of 2009 passed by the Junior Civil Judge, Tadipatri, the Plaintiff filed the appeal before lower appellate court. It was numbered as Appeal Suit^No. 1 of 2015. The Lower. Appellate Court by an order dated^11.08.2015 has remanded the matter to the trail court.

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Aggrieved by the said judgment and decree dated 11.08.2015 the 2^^^ defendant who iS' appellant herein has preferred the present Appeal under Order 43, Rule l(u)^ofCPC.

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The lower appellate court has framed similar issues as framed by the trial court after adjudication has remanded the matter back to the trial court observing that “the evidence brought on record by both the parties before the trial court^{isnotsufficient} to decide' the controversy between both parties and they have not taken any steps to send the available public records to prove their respective versions. The plaintiff omitted to add necessary' parties. In order to give finality to the litigation the court thought that it is just and necessary to set aside the decree and judgment^oftrial court dated 12.12.2014 and remitted the matter back to the trial court with a direction to permit the plaintiff to implead other legal

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heirs as parties to the Suit and to permit both the parties to adduce further evidence on their behalf in respect^{ofailtheissues} and to dispose of the matter afresh.

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The appellant herein who is defendant no.2 in the suit^would contend that the lower appellate court can remand the matter under Order XLI Rule 23A finally, where the court from^whose decree an appeal is preferred has omitted to frame^{anissueorfail} to determine any question of fact which appears to the appellate court essentially to the right decision of the suit upon the merit and the appellate court if necessary frame an issue^andreferthe same to the trial court from whose decree, the appeal is preferred.

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When appellate court found that the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree, the appeal is preferred.

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The appellate court cannot remand this matter for receiving additional documents under Order 41 Rule 27. The lower appellate court has to undertake the same.

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The appellate Court can permit to produce additional evidence, whether oral or documentary if appellate court found

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that the trial court has refused to admit evidence which ought to have been admitted.

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The appellate coi:rt can allow the additional evidence and the same is not filed before the trial court and the party is able to establish due diligence and the evidence was not within the knowledge of the trial court.

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The appellate court has to assign valid reasons while allowing or dismissing the application to receive additional evidence.

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It is further contention of the appellant herein is that the discretion should not be exercised arbitrarily but with circumspection guided by sound and reasonable judicial principles capable of being corrected by the court of appeal it should not be a substitute of laxity but be stemmed from the need to render substantial justice. The opposite party should not enlarge in the appeal of such a scope of the dispute in the list by adducing evidence afresh.

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For the above said contentions the appellant herein has relied the following judgments:

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The Supreme court while dealing the issue for remanding held that in UUaradi Mutt v. Ragavendra Swamy

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MuW when no case was made out to adduce additional evidence and in that event the entire case should not have been remanded to the trial court for fresh disposal after recoding fresh evidence as this case was not a case envisaged under order 41 Rule 23 of CPC when the lower appellate^court cannot remand without any special reasons recorded^as to why the party should be recorded before the trial court^tore decide the suit.

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The Honble Supreme Court in H.P. Vedavyasachar vs. Shivashankara and Ors^ when High Court cannot clear up the trial court to dispose of the suit after taking^evidence under order 41 Rule 27 in Kesava Reddy v. A. Visupaksha Reddy^, the composite High Court of Andhra Pradesh^has held that when an additional evidence produced for^thefirst time before the appropriate court remanding of case to trial court for adjudication of suit a fresh after taking on recording of additional evidence is not permissible in view of^Order41 Rule 28. In Saraswathi Devi Vs. Jujjurn Satyanarayana

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' (2018) 10 Supreme Court Cases 484

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"2009 (8) see 231

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"2016(1) ALD 564

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Raju^ the High court of Andhra Pradesh after following^the judgment of the Honble Apex Court the power under Order⁴¹ rule 23 is wide amplitude and of discretionaiy in nature^but the discretion should not be exercised arbitrarily^butwith circumspection guided by sound and reasonable judicial principles capable of being corrected by the court of appeal. It should not be a substitute for laxity but be stemmed from the need to render substantial justice. The order of remand should indicate sufficient and cogent reasons for remitting^the matter for retrial and- also held that it should be remembered that when retrial is ordered it amounts to allowing the party to fill in the lacuna crept at the trial with eyes wide open the basis of the pleadings and issues raised and the conclusion of the trial court and eventually held mere fact that the evidence on record is not sufficient to enable a court to come to different conclusion on an issue or a point is not a ground to remit the matter. In Ameer Basha v. K. Nagarathnamma, this Court after following the judgment^of A. Ramaiah v. A. Pedda Sayanna Sailoo (died)^ held^that the appellate court should record a finding that a^retrial is

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“ (1985) 2 ALT 478 "(1989) 1 ALT 506

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necessary upon reversing the decree and judgment of^trial court on merits and also to meet the requirement of^Order41 Rule 23A CPO and also held that remanding the matter^tothe trial court cannot be in the nature by virtually reviving^the respondent who have an adequate opportunity to lead evidence at the trial court and who had neglected to^soisnot justified. And in the similar lines, judgment of pronouncement in Purapabutchi Rama Rao v. Purapa Vimala Kumari and held that trial Court has not recorded any findings given to the effect that the judgment^ofthelower court is erroneous and liable to be setaside as per the procedure contemplated under Order 41 Rule 23 CPC.

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The above said issues held in series of Judgments by the Honhle Supreme Court namely Shivakumar and ors. V. Sharanabasappa and others^ and Somakka (dead) by Lrs vs. K.P. basavaraj (dead) by Lrs'^ and in Santosh Hazari v. Purushottam Tiwari^ the appellate court has jurisdiction^to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law.

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'' AIR 2020 Supreme Court 3102 " 2022 4 ALD 180 *(2001) 3 see 179

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The whole case is therein open for rehearing both on question of fact and law. The judgment of the mind and record findings supported by reasons on all issues arising along with contentions put-forth, and pressed by the parties for^decision of the appellate court while reversing a finding of^factthe appellate court must come into close quarters with the reasoning assigned by the trial court and then assign^its own reasons for arising at a different finding it would satisfy the court hearing a further appeal that the first appellate^court had discharged the duty expected of it.

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In Kollapudi Sriramulu v. K. Venkata Radha Krishna Murthy and another in the said judgment apart from the recording of reasons, the High Court has held^thatit is not open to the opposite party to enlarge in the appeal of such a scope of the dispute in the Lis by adducing^evidence afresh. In P. Purushottam Reddy v. Pratap Steels

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Limited^ when the plea, was not taken in the written statement, the question of framing an issue did not^therefore

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arise. The Honhle Supreme Court held that it is not permissible to remand the matter for question of framing^an ^ (2002) 2 see 686

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issue which was not raised in- the written statement. In Jagarlamudi Rosaiah v. Daggubati Venkanna^o held in

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the following manner

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As can be seen from the findings recorded, it is not as though the evidence available on record is insufficient. As against the evidence of P.W.l. apart from D.W. 1. D.Ws. 2 and 3 also had been examined. No doubt, the evidence of D.W. 2 and D.W. 3 had been disbelieved by the Court of first instance, The Appellate Court could have appreciated this evidence and could have disposed of the matter. Even in a case where the Appellate Court otherwise was satisfied that one of the issues had not been framed by the Court of first instance, this could have been done in the light of the language of Order 41, Rule 24 of the Code.

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In Vidya Sagar Cole (died) and others v. J. Balaji Singh and another, the High Court at Hyderabad held that^remand cannot be directed to enable a party to fillup lacuna^inhis evidence in trial court. The Honhle Supreme Court in U. Manjunath Rao v. U. Chandrashekar and another^ ^ held that on perusal of the Rule for remand it is quite^clearthat the judgment of the appellate court has to state the^reasons for the decision. While stating law the court has opined^that expression of general agreement with the findings recordedⁱⁿ

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2008 (1) ALT 88 2017(3) HLT174(SC)

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the judgment under appeal should not be a devise or camouflage to be adopted by the appellate court for shirking the duty cast on it. The same was observed in Santosh Hazari (supra) and in Ashwinkumar K. Patel v. Upendra J. PateV^ High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court, merely because it considered that the reasoning of the lower^courtin some respects was wrong which leads to unnecessary delay and cause prejudice to the parties in the case. In Gottimukkala Ramachandrayya and others V. Kesari Chandramouli and others^^ HonTde High Court held that not only the appellate court be satisfied with the judgment and decree under appeal or unsustainable on the record available in the case and in law, but the appellate^courtmust go further and must be satisfied that “the interest of justice” demand a remand and that would only be the proper course to take having regard to the entire circumstances of the case. In the similar circumstances Vadla Veerabhadrappa V.

1999 AIR (SC) 1125

1961 ALT 195

Challa Venkatappa^^ and in Satnam Singh and another^v. Malook Singh and others^^ held in the above said manner.

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The lower appellate court while remanding the matter has observed that both the parties have not taken any^stepsto send the available public records to prove their respective^versions. The plaintiff omitted to add necessary parties.

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Under Rule 9 of Order 1 “no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the^courtmayin every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before^it”:

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[Provided that nothing in this rule shall apply to^non-joinder of necessary party.]

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As pyer the provisio the non-joinder of the necessary^partybe fatal to the suit. Which decision of the lower appellate court directing the plaintiff to add parties amounts to cover^thelacunas of the party.

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Therefore, remanding on such issue is contrary to law^forthe aforesaid reasons, the appeal in A.S. No.l of 2015^ishereby set aside and remand back to the lower appellate court^todecidethe

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AIR 196! /J’ 226

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15 (2008) 1! see 798

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matter afresh basing upon the observations made by^thisCourt and the judgments relied by this Court.

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Accordingly, the Civil Miscellaneous Appeal is^allowed remanding the matter to the lower appellate court. The lower appellate is directed to pass appropriate orders- basing upon above findings and judgments. However, no costs.

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As a sequel miscellaneous applications pending, if any, stands closed.

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SD/- S.V.S.R.W(URTHY JOINT REGISTRAR

//true copy//

SECTION OFFICER

To,

The Gouda, Advocate [OPuej 3- OnecSt;sri"akshaDattatreya of Andhra Pradesh at Amaravati 4. ?he £»n Officer. V.R Section, High Court 5. Three CD Copies VNA

HIGH COURT

DATED:18/01/2023

ORDER

CMA.No.643 of 2016

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M:.ri. 0 7 AUG 202'»
CuiTent Season ^ j

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