M.H. Krishnappa vs D.K. Govindachar and Another

Padmanabhiah, J.—This is an appeal preferred by the appellant-plaintiff against the order of remand passed by the Additional Subordinate Judge, Bangalore, in R, A. No. 239 of 1954, setting aside the judgment and decree passed by the learned Second Munsiff, Bangalore, in Order Section No. 294 of 52-53.

The appellant was the plaintiff and the respondents were the defendants in Order Section No. 294 of 52-53 on the file of the learned Second Munsiff, Bangalore. Plaintiff''s suit was one for specific performance of an agreement to Sell dated 6-11-1950, executed by defendant 1 undertaking to sell the Schedule property to the plaintiff for a sum of Rs. 775/-. Plaintiff''s grievance was that defendant 1 had subsequent to the date of this agreement sold the property to defendant 2 who had purchased the same with the knowledge of the agreement of Sale, and therefore he filed a suit against both the defendants for specific performance of the agreement.

The defendants denied the plaintiff''s claim: defendant 1 denied the execution of the agreement of sale in favour of the plaintiff, and defendant 2 contended that this sale deed had come into existence even prior to the date of the agreement of sale in favour of the plaintiff and that he was a bona fide purchaser. In reply, the plaintiff asserted that the alleged sale deed in favour or defendant a was got up subsequently and that the same was deliberately ante dated.

The learned Munsiff decreed the suit. Defendant 2 took that decision in appeal and the learned Subordinate Judge found that an important issue which arose from the pleadings had not been framed by the trial Court and he accordingly framed an issue as follows:

"Whether the sale deed dated 15-5-1950 executed by defendant 1 in favour of defendant 2 was really executed subsequent to the agreement dated 5-11-1950 executed in favour of the plaintiff and whether the sale deed in favour of defendant 2 was deliberately ante-dated with a view to deprive the plaintiff of his rights under the agreement."

After framing this issue, the learned Subordinate Judge set aside the judgment and decree of the Court below and remanded the suit to the trial Court with a direction to give an opportunity to the parties to. adduce evidence on the issue newly framed and dispose of the same afresh according to law. It is against this order that the present appeal is preferred.

It is conceded on both sides that the new issue framed by the learned Subordinate Judge arose out of the pleadings, that the same was an essential Issue and that the lower appellate Court was right in framing it. It is also seen that defendant 2 wanted to adduce evidence in support of that issue.

Under these circumstances, there is no substance in the plaintiff contending that the Court should have proceeded to judgment on the evidence already on record and that no fresh evidence was necessary. When the issue was newly framed and defendant 2 wanted to adduce evidence in support of that issue, it is but fair that he should be given, an opportunity for doing so.

But we are of opinion that the order of remand of the entire case after setting aside the judgment and decree of the trial Court was not warranted under the circumstances of the case.

When art appellate Court comes to the conclusion that the trial Court had omitted to frame or try an important issue arising from the pleadings and essential for a right decision of the suit on merits, it is open to that court under Order 41, Rule 25, Civil P. C. to frame and refer that issue for trial to the trial Court retaining the appeal on its own file and directing the trial Court to take additional evidence and submit the same with the finding thereon and on receipt of that finding the appellate Court may proceed to judgment. In such a case, no useful purpose will be served by re-opening the entire case and remanding the same. We think that the order in question has to be set aside.

In the result, we reverse the order of the learned Subordinate Judge setting aside the judgment and decree of the learned Second Munsiff, and direct the lower appellate Court to keep the appeal on its file and remit the issue to the trial Court for a finding and after receipt of the finding, to dispose of the appeal on merits in accordance with law. The costs of this appeal will be costs in the cause and abide the result.

Appeal allowed.