Sri Narayanappa Vs Sri Hanumanthappa

SRI KANTHARAJU, S/O LATE B K NARASIMHAPPA, AGED ABOUT 38 YEARS, RESPONDENT NO.1 TO 3 ARE R/AT BANDAMANAHALLI VILLAGE, NANDI HOBLI, CHICKKABALLAPUR TALUK AND DISTRICT - 562101.

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HC-KAR

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SMT BHAGYAMMA,

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D/O LATE B K NARASIMHAPPA, AGED ABOUT 40 YEARS, R/AT RAICHAPURA VILLAGE, CHICKKANAHALLI POST, KORATAGERE TALUK, TUMKURU DISTRICT - 572129.

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SMT LEELAMMA, W/O LATE NARAYANAPPA, AGED ABOUT 49 YEARS, R/A BANDAMMANAHALLI VILLAGE, NANDI HOBLI, CHICKKABALLAPUR TALUK AND DISTRICT - 562101.

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SMT RADHAMMA, W/O NARASIMHAPPA, AGED ABOUT 58 YEARS,

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SMT GEETHAMMA, W/O MADHU, D/O NARASIMHAPPA, AGED ABOUT 38 YEARS, R/AT SADALLI VILLAGE AND HOBLI, SIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT - 562105.

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SRI ANIL, S/O NARASIMHAPPA, AGED ABOUT 42 YEARS, RESPONDENT NO.6 AND 8 ARE R/AT BANDAMMANAHALLI VILLAGE, NANDI HOBLI, CHICKKABALLAPUR TALUK AND DISTRICT - 562101.

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…RESPONDENTS

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(BY SRI G BALAKRISHNA SHASTRY, ADV. FOR R1 TO R5, SRI B R RAGHAVENDRA, ADVOCATE FOR R8, R7 IS SERVED)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.11.2021 PASSED IN RA.No.108/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.07.2019 PASSED IN OS.No.623/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHIKKABALLAPUR THE APPELLANTS AND FIRST RESPONDENT SHALL APPEAR BEFORE THE TRIAL COURT ON 06.01.2021 WITHOUT EXPECTING ANY NOTICE OR SUMMONS BY THE TRIAL COURT.

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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 ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This Miscellaneous Second Appeal is filed assailing the judgment and decree in R.A.No.108/2019 on the file of II Additional Senior Civil Judge, Chickballapur.

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In terms of impugned judgment and decree, the appeal is allowed in part on payment of cost of Rs.5,000/payable by the appellants/ defendants before First Appellate Court to the plaintiff/respondent No.1 before First Appellate Court.

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First Appellate Court remitted the matter to the Trial Court to recast Issues No.1 to 4 and to provide opportunity to both the parties to adduce evidence.

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Learned counsel appearing for the plaintiff/appellant would submit that First Appellate Court could not have remanded the matter by setting aside the entire judgment and decree. Assuming that the respondents/ defendants have made a ground for production of additional documents and made a ground for remanding the matter to enable them to lead evidence, still could have retained the appeal in its file and could have framed the issues and could have permitted the parties to lead evidence and could have secured the findings on those issues.

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To substantiate his contention, learned counsel would submit that the suit was once decreed in favour of the plaintiff/appellant. Then the defendants filed an appeal and appeal was allowed and the matter was remanded to afford opportunity to the defendants to lead evidence, as defendants did not lead evidence in the first instance. Thereafter, defendants though led examination-in-chief did not subject

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themselves to the cross- examination and evidence was taken as nil and rightly the suit is decreed.

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Though some additional documents are produced before First Appellate Court to substantiate the contentions raised by the defendants, the remand of the matter by setting aside the entire judgment and decree was totally uncalled for under Order XLI of the Code of Civil Procedure and thus would contend that the judgment and decree has to be set aside and First Appellate Court should be directed to hear the appeal on merits.

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Learned counsel for the defendants/respondents would contend that the defendants have raised a specific contention that the suit is bad for non-joinder of necessary parties and the vendor who allegedly sold the property to the plaintiff did not have absolute right over the property and the property was jointly owned by several other persons and the suit without making those persons as necessary parties is defective and under these circumstances, First Appellate Court is justified in remanding the matter to the Trial Court.

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It is further submitted that the defendants/ appellants before First Appellate Court have also produced additional documents to substantiate their contention and First Appellate Court also felt that the documents are necessary for adjudication of the case on hand and having allowed the application while considering the appeal on merit is justified in remanding the matter to the Trial Court.

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Learned counsel for the plaintiff/appellant would also urge that initially the suit was filed by two plaintiffs and said suit was decreed and the appeal filed by the defendants was allowed and matter was remitted to the Trial Court for fresh consideration. At that point of time, plaintiffs No.1 & 2 did not get along well with each other, as such an application is filed to transpose plaintiff No.2 as one of the defendants and the plaint was suitably amended and plaintiff only sought declaration of 1/2 share. And now the relationship between plaintiff No.1 and plaintiff No.2 is cordial and plaintiff No.2 is no more, and legal representatives of plaintiff No.2 are already on record as respondents No.2 to 8 and under these circumstances, the matter could not have been remanded.

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The Court has considered the contentions raised at

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the bar and perused the records.

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This Court while admitting this appeal had framed

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the following substantial questions of law on 02.12.2021.

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(a) Whether the 1^st Appellate Court was justified in remitting the case back to the Trial Court for recasting the issues without taking into consideration the subsequent events that led to the plaintiff No.2 being transposed as defendant No.4 and her children as defendant Nos.5 and 6?

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(b) Whether the relief sought for by the plaintiff could be moulded by declaring that he is the owner of 1/2 share in the suit schedule properties, since the other 1/2 share belonged to the transposed defendant Nos.4, 5 and 6?

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It is not in dispute that initially the suit was decreed

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when the suit was prosecuted by two plaintiffs. Later, on an appeal filed by the defendants, the appeal was allowed in part and matter was remitted to the Trial Court to afford opportunity to both the parties to lead evidence as both the parties filed

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applications for production of additional documents before First Appellate Court.

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After the remand, plaintiff No.2 was transposed as one of the defendants. The plaint was suitably amended. The plaintiff/appellant before this Court sought declaration only to the extent of 1/2 share.

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Defendant No.1 though filed affidavit did not produce any documents and did not subject himself to the cross-examination.

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The Trial Court has held that the evidence of the

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defendant is to be taken as nil and thereafter has passed a decree declaring that the plaintiff is the owner to the extent of 1/2 share.

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That judgment and decree was called in question before First Appellate Court. And before First Appellate Court, application is filed for production of additional documents namely the revenue records and other documents. The application was allowed after hearing the appeal on merits and now the matter is again remitted.

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It is noticed from the pleadings that the defendants

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raised a contention that the suit is bad for non-joinder of necessary parties. The Court has not framed any issue based on this contention.

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It is also noticed that after the first remand and transposition of plaintiff No.2 as one of the defendants, the plaint was amended and additional statement is also filed. And issues have not been recast by the Trial Court. This is one procedural irregularity committed by the Trial Court.

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Considering the peculiar circumstances of this case where the matter was remanded by First Appellate Court on two occasions, this Court is of the view that First Appellate Court could not have set aside the entire judgment and decree. First Appellate Court could have framed issues and sought for finding on those issues by permitting both the parties to lead evidence on those issues as contemplated under Order XLI Rule 25 of Code of Civil Procedure. Hence, to the limited extent the judgment and decree passed by First Appellate Court are set aside.

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Hence the following:

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ORDER

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(i) Appeal is allowed in part .

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(ii) Impugned judgment and decree dated 13.11.2020 passed by II Additional Senior Civil Judge, Chickballapur in RA No.108/2019 are set aside.

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(iii) The matter is remitted to First Appellate Court.

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(iv) First Appellate Court shall frame issues as required under law based on the amended pleadings.

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(v) First Appellate Court shall remit the matter to the Trial Court to permit both the parties to the proceeding to lead evidence on those issues which are to be framed by First Appellate Court (also taking into consideration the amended pleadings) and thereafter First Appellate Court shall secure the finding on those issues decide the appeal in accordance with law.

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(vi) Both parties are permitted to raise grounds on any of the findings of the Trial Court to be recorded on the issues to be framed by First Appellate Court.

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