Sanna Basavaraddi vs Shivashankarappa @ Shankarappa and Others

A.V. Chandrashekara, J.—With the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal. Appellant herein was the petitioner in a final decree petition bearing No. FDP No. 6/1993, which was pending on the file of the Principal Civil Judge (Jr. Dn.), Gadag. Respondents herein were the respondents in the said final decree petition. The said petition had been filed under Order 20 Rule 18 of CPC. The FDP Court has allotted 1/7th share each to respondent Nos. 3 to 8 therein and 1/7th share to the petitioner who is the appellant herein. Respondent No. 6-Shivashankarappa in FDP No. 6/1993, being aggrieved by the said order passed by the FDP Court, chose to file an appeal u/s 96 of CPC before the Court of the Senior Civil Judge, Gadag in R.A. No. 43/2012. Several grounds had been urged inclusive of one relating to the non consideration of the report of the Commissioner and even in regard to variation of shares done by the FDP Court. After hearing the arguments, the learned Judge of the first appellate Court in R.A. No. 43/2012 has set aside the order passed in FDP No. 6/1993 and remanded the matter to the trial Court to consider the Commissioner''s report submitted by the Court Commissioner and to decide the matter once for all. This order is dated 25.03.2013. It is this order, which is called in question under Order 43 Rule 1(u) of CPC by way of Second Miscellaneous appeal.

The moot point that arises for consideration in this appeal is:

Whether the first appellate Court was justified in setting aside the order passed by FDP Court and remanding the matter for fresh consideration?

Admittedly, the first appellate Court has all the trappings of a civil Court dealing with an original suit. It can record the evidence or get the evidence recorded by the trial Court and thereafter, it can solicit a report. If the FDP Court has not considered the report of the Commissioner, nothing comes in the way of the first appellate Court itself to consider the Commissioner''s report and to take a holistic view.

Normally, the appellate Court will presided over by a relatively senior Judge who has greater experience and expertise than a Judge in the trial Court. Admittedly, the trial Courts are already over burdened and in this view of the matter, it is not advisable for the first appellate Court to mechanically remand the matter and burden the trial Court. If the remand so made was an open remand, this Court would not have definitely interfered with. This is a limited remand directing the trial Court to consider the Commissioner''s report and the variation of share and thereafter to pass appropriate orders. These things could be done by the appellate Court itself.

While dealing with the provisions of Order 41 Rule 23, 23A, 27, 28 and 29 of CPC, this Court in Shanthaveerappa Vs. K.N. Janardhanachari, has held in paragraph 10, which is as follows:

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 therefore 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. Herein 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.

Keeping in mind the caution given by this Court in Shanthaveerappa''s case and the principles enunciated in H.P. Vedavyasachar Vs. Shivashankara and Another, , the order of remand made by the first appellate Court is not justified either on facts or in law. Suffice to state that whatever is expected to be done by the FDP Court, could well be done by the first appellate Court and a holistic view could be taken in regard to the finality of the rights of the parties by dividing the properties by metes and bounds. Hence, the appeal is liable to be allowed.

ORDER

The miscellaneous second appeal is allowed. The impugned order dated 25.03.2013 passed in R.A. No. 43/2012 is set aside.

The first appellate Court itself shall consider the report of the Commissioner and such other contentions as may be urged by the parties and thereafter to take a holistic view and dispose of the matter. It is necessary to give suitable opportunity to the parties to lead evidence.

The parties shall appear before the first appellate Court on 20.02.2014 without fail and the learned Judge of the first appellate Court shall try to dispose of the matter within a period of six months from 20.02.2014. The parties are directed to cooperate with the Court in disposing of the matter.

Send back the records.

There is no order as to costs.