Bharati vs Shivamurtheppa

B. Veerappa, J.—The plaintiff filed this Miscellaneous Second Appeal against the judgment and decree 4.12.2013 made in R.A. No. 107/2010 on the file of the I Addl. District and Sessions Judge, Dharwad, reversing the judgment and decree dated 6.3.2009 made in O.S. No. 140/2006 on the file of the I Addl. Civil Judge (Sr.Dn.) Hubli, and remanding the matter to the Trial Court in view of allowing the application No. IV filed under Order XLI Rule 27 of the Code of Civil Procedure and I.A. No. V filed under Order 1 Rule 10(2) of the Code of Civil Procedure.

The appellant filed the suit for partition and separate possession and mesne profits that one Kareppa was the original propositus and he had two sons by name Shivashankarappa and Shivamurtheppa. Kareppa and Shivashankarappa died. There was dispute between the legal representatives of Shivashankarappa and Shivamurtheppa in respect of ancestral property. Now the dispute is settled. Plaintiff submits that her husband Gangadhar S/o. Shivamurutheppa died leaving behind her as his legal heir intestate. Her husband was carrying on the agricultural work and maintaining the tractor. He was hale and healthy but due to the accident he died. He was hard working and earned lot of money and handed over to his father. Out of the said money derived from the income of the joint family and with hard earned funds of his son-Gangadhar, defendant has improved all the properties and purchased some properties in his name.

The plaintiff during the lifetime of her husband lived with defendant. After the death of Gangadhar-her husband, defendant has driven her out from the matrimonial home and did not even care to return her own articles, clothing, ornaments etc., gifted at the time of her marriage from her parental side. Taking undue advantage of his name in the revenue records, the defendant is trying to alienate the suit schedule properties and also denied the right of the plaintiff in the properties. Therefore, she filed the suit.

Defendant though engaged an advocate failed to file the written statement and subsequently along with I.A.2 written statement was filed and the said application came to be rejected on 22.06.2007 and no appeal/writ petition was filed. Therefore, there was no defense by way of written statement filed on behalf of the defendant.

The Trial Court on the basis of the pleadings framed the following issues:--

"1. Whether the plaintiff proves that all the schedule mentioned properties are joint family properties of the plaintiff and defendant?

Whether the plaintiff proves that she is entitled to get half share in all the properties shown in the plaint para No. 2?

What order?"

In order to establish her case, the plaintiff was examined as PW.1 and marked documents Exs. P1 to P8 and not cross-examined PW.1. After considering the entire material on record, the Trial Court recorded a finding that plaintiff proved that all the suit schedule properties are joint family properties of the plaintiff and defendant and she is entitled to 1/2 share in all the properties shown in the plaint at paragraph No. 2. Accordingly the suit came to be decreed.

Against the said judgment and decree the defendant filed an appeal in R.A. No. 107/2010 before the First Additional District and Sessions Judge, Dharwad. After hearing both the parties the Lower Appellate Court passed the impugned judgment and decree dated 4.12.2013 has allowed the appeal and remanded the matter to the Trial Court for fresh consideration mainly on the ground that two applications filed by the appellant under Order 41 Rule 27 and Order I Rule 10(2) of the Code of Civil Procedure are allowed. Against the said judgment and decree the present Miscellaneous Second Appeal is filed.

I have heard the learned counsel for the parties to the lis.

Sri Dinesh M Kulkarni, learned counsel for the appellant herein has contended that the Lower Appellate Court committed an error in remanding the matter only on the ground that two applications filed by the respondent came to be allowed. The First Appellate Court could have considered the appeal on merits and disputed facts of the case and given a finding on fact instead of remanding the matter, hence the First Appellate Court was not just and proper and learned counsel further contended that the Lower Appellate Court failed to notice that suit is filed only for partition. By impleading or deleting the parties, the nature of the suit will not be changed. It is nothing but a passing a preliminary decree regarding entitlement of the share of the parties. Such being the case, the First Appellate Court could have decided the rights of the parties who were to be impleaded by virtue of the impleading application. Therefore, he sought to set aside the impugned judgment and decree of the appellate court.

Per contra, Sri. Suresh S. Shettemmanavar, learned counsel for the respondent sought to justify the impugned judgment and decree of the appellate court and fairly submitted that if Lower Appellate Court impleaded the proposed applicants as party to the appeal and provides an opportunity to file written statement, the Lower Appellate Court can decide the case on merits after recording the evidence, if necessary.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

The only question that arises for consideration in this appeal is:

"Whether the Appellate Court was justified in remanding the matter to the trial Court only on the ground that the applications filed under Order 41 Rule 27 and Order I Rule 10(2) of the Code of Civil Procedure are allowed?"

It is not in dispute that the suit filed by the appellant-plaintiff for partition and separate possession was decreed by the Trial Court based on the material and oral evidence of PW.1 and documentary evidence Exs. P1 to P8 and specifically recorded a finding that the plaintiff proved that all the suit schedule properties are joint family properties of the plaintiff and defendant and plaintiff is entitled to half share.

The respondent herein was the appellant before the Lower Appellate Court. During the pendency of the appeal he has filed two applications viz., No. IV filed under Order XLI Rule 27 of the Code of Civil Procedure for production of additional documents contending that the defendant has got two sons viz., Chandrashekar and Gangadhar and two daughters viz., Sumangala and Prema and first son Chandrashekar has been given in adoption and Gangadhar who was the husband of the plaintiff and Sumangala and Prema are his daughters and they are also having their right and share in the suit schedule properties and therefore he has produced four documents viz., Transfer Certificates, Leaving Certificate, Marks Cards of his children and I.A. No. V was filed under Order 1 Rule 10(2) of the Code of Civil Procedure for impleading both the daughters viz., Sumangala and Prema and further contended that the two sons and daughters were born after 1956 viz., Prema on 23.05.1965 and Sumangala on 23.05.1968. Therefore, both the daughters are entitled to equal share in the suit schedule properties. Therefore, they are necessary parties to the suit. Accordingly both the LA Nos. 4 and 5 were allowed and daughters are permitted to come on record. Therefore, the Lower Appellate Court was of the view, that in view of impleading of the daughters, an opportunity should be given to them to putforth their defence in the suit. Therefore, it requires de nova trial in the suit. Thus the Lower Appellate Court was of the opinion, that the matter requires remand to the Trial Court for fresh consideration by giving an opportunity to both the parties who were impleaded as defendant Nos. 2 and 3 to putforth their defense and dispose of the matter on merits. Accordingly the Lower Appellate Court passed the impugned judgment and decree.

It is not in dispute that the suit was filed for partition and separate possession and it is the case of the appellant that he had two sons and two daughters and one son was given in adoption long back and application came to be allowed before the Lower Appellate Court. The Lower Appellate Court after allowing the application under Order XLI Rule 27 of the Code of Civil Procedure and under Order 1 Rule 10(2) of the Code of Civil Procedure, ought not to have remanded the matter and Lower Appellate Court itself could have decided the matter since an appeal is a continuation of original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, re-settle issues, delete issues, receive evidence by way of additional evidence, record evidence, summons witnesses and documents, order for Commission, pass interim orders. The Lower Appellate Court can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment/decree of the Trial Court. The Lower Appellate Court also has the power to entertain cross appeals and power to grant relief to a party to the proceedings who has not preferred the appeal and set aside the findings recorded against the respondent in the appellant''s appeal. Thus, the power of the First Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties to the lis. Lower Appellate Court cannot plead or feel helpless to meet any situation arising in a case of resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the First Appellate Court. Therefore, the legislature has entrusted a very important duty to the First Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the First Appellate Court itself. When the Trial Court after considering the evidence, has come to the conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 of the Code of Civil Procedure. Only if it is not possible to do so and it is not necessary in the interest of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the First Appellate Court should act under Rule 28 and not remand the whole case under this Rule. Such an order can be passed only in exceptional cases.

Admittedly in the present case, it is a suit for partition, if some of the parties are impleaded in the Lower Appellate Court and it was brought to the notice of the Appellate Court by filing an application and the said application was allowed and in support of the said application for impleadment the documents were also produced under Order 41 Rule 27 of the Code of Civil Procedure to show that the impleading applicants are the daughters of the 1st defendant, then the Lower Appellate Court should have proceeded in the case on merits and it was for the First Appellate Court to record the evidence and permit the impleading applicants to file written statement and decide the case on merits. In the absence of any reason the Lower Appellate Court should not have remanded the matter to the Trial Court as the same is contrary to the mandatory provisions of Order 41 Rules 24 to 27 of the Code of Civil Procedure. In view of the same, the question framed in this appeal has to be answered in the negative holding that the Lower Appellate Court is not justified in remanding the matter to the Trial Court.

Therefore, the impugned judgment and decree passed by the Lower Appellate Court cannot be sustained in law.

It is a fact that the dispute between the parties is in respect of the joint family properties and there is also no dispute between the relationship of the parties and suit is filed for partition. It is always open for the Lower Appellate Court to permit to implead the daughters of the respondent herein as parties to the appeal and permit the proposed respondents to file written statement and record evidence if necessary and after giving an opportunity to all the parties, the Lower Appellate Court shall decide the case on merits in accordance with law.

In view of the aforesaid reasons, I pass the following order:--

"1. This MSA is allowed in part.

The impugned judgment and decree dated 4.12.2013 passed in R.A. No. 107/2010 by the I Addl. District and Sessions Judge, Dharwad, is set aside.

The matter is remanded to the Lower Appellate Court with a direction to hear the appeal on merits first, and then take into consideration the application for production of additional evidence. If it is of the view that it is unable to pronounce the judgment on merits and cannot do complete justice between the parties, without these documents being taken on record, it has the discretion to allow the said application.

However, after allowing such applications, if the parties request that they may be permitted to adduce oral evidence, then the first Appellate Court itself shall record the oral evidence and in the light of such oral evidence and the oral evidence already on record and documentary evidence, dispose of the appeal on merits in accordance with law without resorting to any further remand.

Both the parties shall co-operate with the Lower Appellate Court for disposal of the appeal as early as possible."

Parties to bear their own costs.