H.N. Krishnamurthachar vs H.S. Ramanayaka and Others

A.V. Chandrashekara, J.—These appeals are filed challenging the judgment and decree dated 26.4.2014 passed by the Court of Senior Civil Judge and JMFC, K.R. Nagar in R.A. 31/2012.

Suits bearing O.S. 305/2005 and 306/2005 pending on the file of Court of Civil Judge and JMFC, Krishnarajanagar had been filed by H.N. Krishnamurthachar seeking the reliefs of declaration of title and permanent injunction against H.R. Ramanaika, who is common defendant in these suits. Suits were decreed on 12.6.2012, as against which, an appeal came to be filed in R.A. 31/2011. The learned Judge of the First Appellate Court has allowed the said appeals and remanded the matters to the Trial Court to frame necessary issues and to appoint fresh court commissioner to inspect and submit a report and thereafter to allow the parties to lead further evidence, if necessary and to dispose of the suit in accordance with law.

After hearing the learned counsel for the parties, following substantial question of law is framed:

"Whether the First Appellate Court is justified in remanding the matter to the Trial Court contrary to the provisions of Order 41 Rule 23(a) of CPC?"

The learned Judge of the First Appellate Court has come to the conclusion that appointing of Court Commissioner is required and parties need to lead further evidence. The First Appellate Court is a Court, which has all the trapping of a Civil Court dealing with the original suits and it can record additional evidence under Order 41 Rule 27 of CPC by itself or can get it recorded under Order 41 Rule 28 of CPC by sending the matter to the Trial Court and then the Trial Court to give its finding.

Order 41 Rule 23(A) of CPC provides for an open remand. Remanding of these matters by the First Appellate Court is contrary to Order 41 Rule 23(A) of CPC. This Court in the case of Shanthaveerappa Vs. K.N. Janardhanachari, (2007) ILR (Kar) 1127 : (2007) 6 KarLJ 531 has specifically held that remanding will be justified only if it is an open remand. Paragraph 10 of the said decision is relevant and same is extracted here in below:

"10. In cases where the trial Court has omitted to frame or try any issue or to determine any question of fact, the Appellate Court if necessary frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required with a direction to return the evidence to the Appellate Court together with findings thereon and the reasons there for within a time to be fixed by the Appellate Court. On receipt of such finding the Appellate Court may dispose of the appeal on merits. Here it would be a case of limited remand and not an open remand. In case where the Appellate Court feels issues have to be resettled and that the trial Court has proceeded wholly upon some ground other than that on which the Appellate Court proceeds, still the evidence upon the record is sufficient, the Appellate Court without resorting to an order of remand resettle the issues and pronounce judgment on merits on all issues. Therefore, it is clear the legislature has provided for all contingencies."

Viewed from any angle, the approach adopted by the First Appellate Court in remanding the matter is improper and incorrect. The substantial question of law is answered in the negative. Hence, the appeals are liable to be allowed and matter has to be remanded to the First Appellate Court.

ORDER

The appeals are allowed. The judgment passed by the First Appellate Court in R.A. 31/2012 is set aside. The matter is remanded to the First Appellate Court to deal with the matter in accordance with law keeping in mind the provisions reiterated in the case of Shanthaveerappa Vs. K.N. Janardhanachari, (2007) ILR (Kar) 1127 : (2007) 6 KarLJ 531 .

Parties shall appear before the First Appellate Court on 4.3.2015 without awaiting any notice from the First Appellate Court.

The learned Judge of the First Appellate Court to dispose of the matter within six months from the date of appearance of the parties.

Parties and advocates to cooperate with the learned Judge for disposal of the matter.

Registry to send the records to the First Appellate Court immediately.

There is no order as to costs.