Hemavathi vs Naga Naika

A.V. Chandrashekara, J.—Heard the learned counsel appearing for the parties.

Following substantial question of law is framed for consideration.

"Whether the First Appellate Court is justified in remanding RA No. 11/2004 to the Trial Court with a direction to permit the appellant to lead additional evidence under Order 41 Rule 27 CPC and also referring the disputed signature to the expert?" 3. The appellant is the sole plaintiff in an original suit bearing O.S. No. 293/2001 pending on the file of the Court of Additional Civil Judge (Jr.Dn.) and JMFC, Arsikere. The said suit filed for relief of specific performance of contract has been decreed, as against which, the sole defendant has filed an appeal under Section 96 of CPC before the Court of Senior Civil Judge at Arsikere. During the pendency of the said appeal, an application came to be filed under Order 41 Rule 27 r/w Section 151 CPC and another application under Order 26 Rule 10-A r/w Section 151 CPC by the defendant -appellant therein with a request to refer the disputed signature and the admitted signature for obtaining the opinion from a hand writing expert. Both the applications have been allowed and the entire judgment of the Trial Court has been set aside. Thereafter, the matter is remitted to the Trial Court for disposal of the suit afresh. This approach is called in question by filing an appeal under Order 43 Rule 1(u) of CPC.

What exactly should be the approach in such cases has been well settled by this Court in the case of Shanthaveerappa Vs. K.N. Janardhanachari, .

Order 41 Rule 23(A) of CPC provides for remanding if it is too an open remand. In the present case, the approach adopted by learned Judge of the First Appellate Court is contrary to the provisions under Order 41 Rule 23(A) of CPC. The First Appellate Court is a Court, which has all the trapping of the Courts dealing with the original suits. This aspect of the matter has been lost sight of by the First Appellate Court. Such being the case, it was incumbent upon the Appellate Court to have considered these two applications.

Viewed from any angle, the approach adopted by the First Appellate Court in remanding the matter is improper and incorrect. Hence, the appeal is liable to be allowed and matter has to be remanded to the First Appellate Court.

ORDER

The appeal is allowed. Impugned judgment is set aside. Matter is remanded to the First Appellate Court to consider the applications filed under Order 41 Rule 27 r/w Section 151 of CPC and under Order 26 Rule 10-A r/w Section 151 of CPC, after hearing arguments on merits as contemplated in the decision rendered by the Hon''ble Apex Court in the case of Malayalam Plantations Ltd. Vs. State of Kerala and Another, .

If the two interlocutory applications are allowed, nothing comes in the way of the First Appellate Court to record additional evidence by itself or to get the evidence recorded by the Trial Court and to solicit the report from the expert as contemplated under Section 45 of the Evidence Act.

The parties shall appear before the First Appellate Court on 11.03.2015 without fail and the matter shall be disposed of within six months thereafter.