Sri. K. Suresh, Vs Sri. Rajendra

THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.03.2024 PASSED IN R.A.NO.205/2023 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT

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NC: 2025:KHC:28609 MSA No. 82 of 2024

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HC-KAR

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AND DECREE DATED 28.07.2023 PASSED IN O.S.NO.784/2019 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MYSURU, MATTER IS REMANDED BACK TO THE TRIAL COURT WITH A DIRECTION.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and

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also the learned counsel for the respondent.

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This miscellaneous second appeal is filed challenging the order passed by the Appellate Court remanding the matter by allowing an application filed under Order 6 Rule 17 of CPC and with a direction to give an opportunity to both parties to produce additional evidence and dispose of the matter afresh without getting influenced by the finding of this Court, the same is challenged before this Court.

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The counsel appearing for the appellant would vehemently contend that the Appellate Court ought not to have allowed the application for amendment and contend

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that the Court committed an error in reminding the case without considering the evidence on record and when the admitted facts and evidence already on record and the same is sufficient to decide the dispute and further contend that when the documents and evidence on record shows that there is no amount due from the defendant to the plaintiff, committed an error in remanding the case when it has got power to decide the question in dispute and also under the proved facts and circumstances of the case and there was no need of allowing the application for amendment and remanding of the matter and hence this Court has to frame substantive question of law.

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Per Contra, the counsel appearing to the respondent would submits that the Appellate Court while considering the point for consideration, though point for consideration are framed, but having heard the application filed under Order 6 Rule 17 of CPC framed the point for consideration as whether the appellant has made out the prima facie ground to allow the I.A filed under Order 6

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Rule 17 of CPC wherein prayer is sought to introduce the proposed additional pleading even though the plaintiff has paid the substantial sale consideration in view of execution of the agreement to sell in favour of the plaintiff which has been accepted by the defendant and it is a registered agreement of sale which has been produced by the plaintiff to be considered accordingly, that apart, if any reasons, the Court comes to conclusion that the relief of specific performance cannot be granted, the alternative relief of refund of the advance amount with interest at the rate of 18% to be granted in favour of the plaintiff and sought for the amendment in the prayer column also and also particularly in paragraph No.20 discussed in detail and then comes to the conclusion that matter requires to be considered afresh and remanded the same and hence this Court cannot find fault with the order of the Appellate Court and the Appellate Court only remand was made in view of amendment as sought.

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HC-KAR

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Having heard the appellant’s counsel and also

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the counsel appearing for the respondent, no doubt the factual matrix of the case is that it is the case of the plaintiff before the Trial Court that defendant entered into an agreement of sale on 14.02.2018 to sell the same for a total consideration of Rs.8,00,000/- and also received an earnest money of Rs.6,00,000/- and also the defendant has committed the breach of the terms of contract and he was always ready and willing to perform his part of contract. On the other hand, the defence was taken by the defendant that it was only a loan transaction and he had borrowed only Rs.5,00,000/- and also executed the agreement since the plaintiff insisted the same. The Trial Court having considered the material on record, dismissed the suit, the same is challenged in the appeal and Appellate Court without considering the grounds which have been urged in the appeal and when an application is filed under Order 6 Rule 17 of CPC allowed the application and remanded the matter. The fresh pleading was made

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only an additional prayer for refund of money with interest and when such relief is sought, the First Appellate Court instead of remanding the matter by allowing the application under Order 6 Rule 17 of CPC, Appellate Court itself would have given an opportunity to file written statement in respect of additional pleading and prayer of alternative relief and also recorded the evidence before the Appellate Court itself and given the finding on the same as well as the reasoning given by the Trial Court with regard to the sale transaction is concerned, the same is not done. The Appellate Court committed an error in allowing the application and remanding the matter and hence the Appellate Court committed an error instead of considering the material on record as well as the additional pleadings made, would have decided the same by the Appellate Court itself by exercising the Appellate Court jurisdiction and the same has not been done. It is not a case for remanding of the matter and only relief is sought with regard to the additional prayer is made, that too for an

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NC: 2025:KHC:28609 MSA No. 82 of 2024

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alternative relief. Hence, the impugned order is set aside.

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The matter is remitted back to the Appellate Court itself to dispose of the matter by giving an opportunity to both the appellant as well as respondent and also directed to give an opportunity to file the additional written statement to the defendant and thereafter frame an additional issue with regard to the alternative prayer and having recorded the evidence, consider the material on record inclusive of the reasons assigned by the Trial Court with the sale transaction and also the additional pleading. The parties are given opportunity to place additional documentary evidence and oral evidence before the Appellate Court.

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The parties are directed to appear before the First Appellate Court on 29.08.2025 without expecting any notice and not to seek unnecessary adjournment and the Appellate Court is directed to dispose of the same within a time bound period of 6 months and both respective parties and counsels are directed to assist the First Appellate Court in dispose of the matter within the time bound

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period. The Registry is directed to send the records forthwith to enable the First Appellate Court to take up the matter without fail on 29.08.2025. With this observation, MSA is disposed of .

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 81

Sri. K. Suresh, v. Sri. Rajendra

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Sri. K. Suresh, v. Sri. Rajendra

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