Allowed

Sri. M. D. Yusuff v. Sri. Sundar Kumar

Karnataka HC18 Jul 2024MSA/3/2023

Case brief

AI extract

What is this about?

High Court allowed the second appeal, holding that remanding an entire suit solely on allowing an application for additional evidence improper. Court directed restoration of appeal before First Appellate Court with limited remand to record additional evidence.

What did the court decide?

Impugned order remanding entire suit set aside; appeal restored to First Appellate Court with direction to record additional evidence only.

Sri. M. D. Yusuff Vs Sri. Sundar Kumar — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS SECOND APPEAL NO. 3 OF 2023

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BETWEEN:

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SRI. M. D. YUSUFF S/O. LATE M. D. GHOUSE,

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SINCE DECEASED, BY LRS-

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1 (a) : SMT.HASEENA BANU,

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W/O LATE M.D.YUSUFF, AGED ABOUT 55 YEARS,

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1 (b) : MOHAMMED YOUNUS,

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S/O LATE M.D.YUSUFF,

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AGED ABOUT 40 YEARS,

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1 (c) : SMT. SALMA BANU,

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D/O LATE M.D.YUSUFF,

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AGED ABOUT 39 YEARS,

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Digitally signed by 1 (d) : SMT.AYESHA SIDDIQUA, GEETHAKUMARI PARLATTAYA S D/O LATE M.D.YUSUFF, Location: High AGED ABOUT 38 YEARS, Court of Karnataka

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1 (e) : MOHAMMED YASIN,

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S/O LATE M.D.YUSUFF,

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AGED ABOUT 37 YEARS,

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1 (f) : MHAMMED JAVID,

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S/O LATE M.D.YUSUFF,

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AGED ABOUT 35 YEARS,

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1 (g) : MUJEEBUR REHAMAN,

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S/O LATE M.D.YUSUFF,

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AGED ABOUT 32 YEARS,

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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ALL ARE RESIDING AT DOOR NO.288, 7^TH CROSS, NACHANAHALLIPALYA, MYSORE - 570 008.

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…APPELLANTS

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(BY SRI. KRISHNAMURTHY G HASYAGAR, ADVOCATE)

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AND:

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SRI. SUNDAR KUMAR S/O. LATE SRI. VISHWANATH, NOW AGED ABOUT 56 YEARS, R/AT DOOR NO. 909, 4^TH CROSS, SUNNADAKERI, K.R. MOHALLA, MYSORE-570 024.

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…RESPONDENT

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THIS MSA IS FILED UNDER ORDER 43 RULE (1) (u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.11.2022 PASSED IN RA.NO.88/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.04.2021 PASSED IN OS.NO.1365/2014 ON THE FILE OF THE IX ADDITIONAL , I CIVIL JUDGE AND JMFC, MYSURU , REMANDING BACK TO THE TRIAL COURT UNDER ORDER 41 RULE 23(A) OF CPC WITH A DIRECTION TO RE-ADMIT THE ORIGINAL SUIT UNDER ITS ORIGINAL NUMBER IN THE REGISTER OF ORIGINAL NUMBER IN THE REGISTER OF ORIGINAL SUIT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging judgment and decree dated 21.11.2022 passed by Principal Senior Civil Judge and CJM, Mysuru in R.A.No.88/2021, this appeal is filed.

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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Sri Krishnamurthy G. Hasyagar, learned counsel for appellant submitted that appellant was original defendant in suit filed for permanent injunction. It was submitted that vide judgment and decree dated 16.04.2021, trial Court dismissed suit. In RA.no.88/2021 filed by respondent/plaintiff, I.A.no.II under Order XLI Rule 27 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) was filed for production of Encumbrance Certificate and Khata Uttara Patra as additional evidence. It was submitted though additional evidence would not be relevant or material to overturn wellreasoned judgment and decree passed by learned trial Judge, First Appellate Court without any more, had allowed appeal and remanded entire suit back to trial Court for fresh consideration with directions to record further evidence. It was submitted remanding entire suit on ground of application for additional evidence having been filed would be contrary to ratio laid down by this Court in the case of Shanthaveerappa Vs. K.N.Janardhanachari reported in ILR 2007 KAR 1127 and MSA.no.12/2009 disposed of on 08.11.2013. On said ground submitted that substantial question of law arose for consideration and sought for allowing appeal.

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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Heard learned counsel for appellant. Respondent is

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served but unrepresented.

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From above, following substantial question of law would arise for consideration:

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"Whether remand of entire suit to trial Court for fresh consideration merely on ground that application filed under Order XLI Rule 27 of CPC for additional evidence was allowed would be justified? "

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Perusal of impugned order reveals that respondent-

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plaintiff had filed I.A.no.II under Order XLI Rule 27 of CPC for additional evidence by production of additional documents namely Khata Uttara Patra Dated 24.09.2010 and Encumbrance Certificate for period from 01.04.2014 to 18.08.2022. After referring to documents produced, First Appellate Court observes that remand of matter to trial Court is required without touching merits and demerits of case. Though First Appellate Court has stated that such remand would be for purpose of extending a fair and reasonable opportunity to appellant and respondent on additional evidence, a specific finding as to whether there was a mistrial requiring remand of entire suit is not recorded.

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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In view of provisions of Order XLI Rule 23-A of CPC,

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though an order of remand would be within power of First Appellate Court, in "Shantaveerappa's case" and

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MSA.No.12/2009, it is held said power cannot be exercised in a routine manner. Even if First Appellate Court comes to conclusion that additional evidence would have material bearing on subject matter, it was required to either record additional evidence itself or remit matter back to trial Court for recording additional evidence, obtain findings and thereafter dispose of appeal. In view of said legal position, order impugned would be unsustainable and contrary to law. Hence, substantial question of law is answered in favour of appellant. Consequently, following:

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ORDER

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1) Appeal is allowed .

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Order impugned is set aside only insofar as remanding entire suit back to trial Court.

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RA.no.88/2022 stands restored before First Appellate Court, remand shall be

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NC: 2024:KHC:27822 MSA No. 3 of 2023

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only insofar as additional evidence sought to be led on I.A.no.II filed under Order XLI Rule 27 of CPC.

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Since original suit is of year 2014, it would be appropriate to direct learned trial Judge to record additional evidence, if not already done, as early as possible within a period of three months from date of receipt of certified copy of this order and remit findings to First Appellate Court.

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First Appellate Court shall thereafter provide opportunity to parties and dispose of appeal within a further period of three months thereafter.

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Sd/JUDGE

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KTY List No.: 1 Sl No.: 45

Sri. M. D. Yusuff v. Sri. Sundar Kumar

Case brief

What is this about?

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Sri. M. D. Yusuff v. Sri. Sundar Kumar

Case brief

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