Smt. Sharada Kottari vs Gopalakrishna Poojari

A.N. Venugopala Gowda, J.—Defendant is the appellant. Respondent filed O.S.666/2003 against the appellant in the Court of Civil Judge (Jr.Dn.) at Mangalore with a prayer to declare that, the order of eviction passed by the 1st Additional Civil Judge (Jr.Dn.,), Mangalore,. in HRC 258/1997 dated 7.4.2000 has become inoperative, unexecutable and unenforceable against her. The suit was resisted by filing the written statement.

The Trial Court framed 12 issues. For the plaintiff, PWs.1 to 3 deposed. Exs.P1 to p8 were marked. The defendant deposed as DW.1 and Exs.D1 to D34 were marked. Taking into consideration the rival contentions, the Trial Court answered all the issues. Issues 1, 4, 5 and 7 were answered in the affirmative, issues 2, 3, 6, 8, 9 and 10 were answered in the negative and the suit was dismissed with costs. Aggrieved, the plaintiff filed appeal in the Court of Civil Judge (Sr.Dn.), at Mangalore.

The first appellate Court upon hearing the learned Counsel for the parties and after perusal of the records of the suit, raised the following points for determination:

i) Whether the Trial Court has framed appropriate issues with reference to the pleadings of both the parties before commencement of evidence?

ii) Whether the appellant- plaintiff proves that in view of the registered sale deed dated 18.11.2002 and registered settlement deed dated 27.9.2003 he has acquired the superior right over the suit schedule property and the decrees passed in H.R.C. petition and Rent Revision Petition are legally inoperative, un-executable and unenforceable against him?

iii) Whether the impugned judgment and decree passed by the Trial Judge is required to be interfered with?

iv) What order or decree?

By answering point No. 1 in the negative, it held that the Trial Court is required to consider the question of law of merger of larger interest with smaller interest in regard to the merger of tenancy and ownership right of the plaintiff by virtue of acquiring mooli right over the suit schedule property as per the registered documents. By arriving at the said finding, it concluded that it is a fit case to remit the suit to the Trial Court to frame appropriate issues, considering the plea set up by the plaintiff in regard to the survey settlement, validity of decree, merger of sub-tenancy with ownership with reference to title deeds of the parties and dispose of the suit in accordance with law. The appeal was allowed. The impugned judgment/decree of the Trial Court was set aside and the matter was remanded to the Trial Court under Order 41 Rule 23-A CPC. Aggrieved, the defendant has filed this appeal.

Sri Vijaya Krishna Bhat, learned Counsel appearing for the appellant would contend that, the Court below has failed to appreciate the fact that, the Trial Court has framed issues elaborately and fresh issue in fact did not arise at all as contemplated under Order 14 Rule 1 CPC and it has committed an error and illegality in remanding the suit to the Trial Court for disposal. Learned Counsel contended that, the first appellate Court has committed breach of provisions under Rules 24 and 25 of Order 41 CPC and impugned judgment is unsustainable.

Sri G.B. Shastry, learned Counsel appearing for the respondent, on the other hand, contended that, the appellate Court has made elaborate reference to the proceedings that have taken place between the parties and also to the relevant provisions of the Karnataka Rent Act, 1989 ("the Act'' for short) and the decisions interpreting the provisions of the Act as well as the effect of repealing of the Karnataka Rent Control Act and has arrived at the right conclusion. According to the learned Counsel, in the facts and circumstances of the case, the appellate Court is justified in passing the impugned judgment since there was a material omission on the part of the Trial Court while passing the judgment and decree of dismissal of the suit. Learned Counsel made submissions in support of the findings and conclusion of the learned appellate Judge in the impugned judgment.

In view of the rival contentions and the record, which I have perused, the point for consideration is:

Whether the appellate Court is justified in remanding the suit to the Trial Court to frame appropriate issues and for decision?

After the amendment Act 104 of 1976, the remand by an appellate Court can be only in terms of Rules 23 and 23A of Order 41 CPC. The powers of the appellate Court are as provided u/s 107 CPC. Since the suit has been dismissed by answering all the issues which were tried, Rule 23 of Order 41 has no application. Since the suit has been disposed of otherwise than on a preliminary point, Rule 23A of Order 41 could have been invoked, in case the decree is reversed in appeal and re-trial is considered necessary, in which case, the appellate Court shall have the powers as it has under Rule 23. Before a remand is ordered by having recourse to the said provision, the appellate Court shall have to examine the appeal keeping in view the provisions under Rules 24 and 25 Rule 24 provides that, where the evidence upon the record is sufficient co enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds. Rule 25 provides that, where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and send the same for trial to the Trial Court with a direction to take additional evidence required and submit the findings. When such an order is passed, it is not open remand, which can take place by virtue of the provisions under Rules 23 and 23A. The order if passed under Order 25 can only be termed as a limited remand for trial on a particular issue or point and for submitting the evidence to the appellate Court. Such a procedure can be adopted by an appellate Court, which has no facility to record the evidence by itself and on account of the handicap which it has, it requires the Trial Court or any competent Court to record evidence on the issue or point. When recourse is had to Rule 25 by an appellate Court, it is imperative that it shall frame the issue and record the evidence which should confine to the issue or the point as the case may. It is thereafter, the appeal should be disposed of.

Keeping in view the provisions noticed supra, when the impugned order is examined, it certainly falls short of the requirements, both under Rules 24 and 25 of Order 41 CPC. The impugned order has been passed without bestowing any attention to the provisions contained under Rules 24 and 25 of Order 41 and the powers of the appellate Court under Sub-section (1) of Section 107 CPC. It is not the case of the appellate Court that, the evidence on record is insufficient to finally determine the appeal. Merely because there is an omission on the part of Trial Court to frame appropriate issues, the appellate Court could not have shirked its responsibility and remanded the suit to the Trial Court. Since it has power and obligation to re-settle the issues and answer the same, it ought to have examined the appeal under Rules 24 and 25 of Order 41 rule25 41 CPC, Since it is not a Case wherein a re-trial was ordered to be held, the appellate Court ought not to have short circuited the matter, taken recourse to Rule 23-A of Order 41 CPC and remanded the suit to the Trial Court. The impugned judgment being in breach of said provisions, is unsustainable. In the said view of the matter, it is unnecessary to examined the findings recorded by the Court below in its judgment.

In the result, I pass the following;

ORDER

The appeal is allowed. The judgment under challenge stands set aside. Appeal stands restored to the appellate Court for disposal, keeping in view, the observations made supra in accordance with law. All the contentions of both the parties are kept open for consideration by the Court below.

The parties are directed to appear before the appellate Court on 17.7.2010 and receive orders. Since the parties are litigating for more than a decade, the appellate Court is directed to take up the appeal on priority basis and dispose of the same expeditiously and at any event, before 31.12.2010.

In the facts and circumstances of the case. The parties are directed to bear their respective costs.

Return the LCR to the first appellate Court.