S.N. Ramaswamy Reddy vs S.N. Sampangi Reddy

K.N. Keshavanarayana, J.—Heard Sri. P.N. Nanja Reddy, learned Counsel appearing for the appellant and Smt. K.K. Thayamma, learned Counsel appearing for the respondent.

This miscellaneous second appeal filed under Order 43 Rule 1(u) of CPC is directed against the judgment and order dated 26.1.2009 passed by the Presiding Officer of the Fast Tract Court-II, Bangalore Rural District, Bangalore, in R.A. No. 103/06 whereunder the lover appellate court after setting aside the judgment and decree of the trial Court dismissing the suit of the respondent-plaintiff, has remanded the suit to the trial court for fresh disposal in accordance with law by taking on record the additional documents produced by the plaintiff-appellant under Order 41 Rule 27 of CPC.

The parties herein are brothers being the sons of one S. Narayana Reddy. The respondent-plaintiff filed O.S. No. 360/01 against the defendant-appellant for the relief of partition and separate possession inter-alia contending that the suit schedule properties are the joint family properties and that there has been no partition between him and the defendant. The sole defendant contested the suit inter-alia on the ground that there was already a oral partition entered into between the two brothers in the year 1975 and under the said partition, all the joint family properties were divided among the two brothers and since than each of them are in possession and enjoyment of the properties which fell to their respective shares. Therefore, the defendant sought for dismissal of the suit. The trial Court framed four issues. One of the issues framed by the trial Court was "Whether the defendant proves that there was a partition in the family on 15.3.1575 and therefore, the plaintiff is not entitled for the share in the property?" The trial court on appreciation of the oral and documentary evidence placed by the parties answered the said issue No. 3 in the affirmative holding that the defendant has proved that there was a partition in the family on 15.3.1975 and in that view of the matter, the trial court dismissed the suit of the plaintiff. Being aggrieved by the said judgment and decree, the plaintiff filed appeal in R.A. No. 102/06 before the lower Appellate Court. The plaintiff filed an application under Order 41 Rule 27 CPC seeking permission of the Appellate Court to produce additional documents, which according to the plaintiff disproves the case of the defendant regarding the alleged partition on 15.3.1975. The lower Appellate Court without considering the said application filed under Order 41 Rule 27 of CPC, and by concurring with the judgment of the trial court dismissed the appeal and upheld the judgment of the trial Court. Against the said judgment and decree of the Courts below, the unsuccessful plaintiff filed the second appeal before this Court in RSA. No. 1522/07. This Court considering the substantial question of law raised in the said appeal to the affect "Whether the judgment and decree of the lower Appellate Court is vitiated for non-consideration of the application filed under Order 41 Rule 27 of CPC by the plaintiff before the lover Appellate Court?" and referring to the nature of the additional documents sought to be produced by the plaintiff, held that the lower Appellate Court was not justified in disposing of the appeal without considering the application filed under Order 41 Rule 27 of CPC. This Court in para 10 of the judgment observed thus:

From the aforesaid judgment, it is clear that the Appellate court ought to have seen what are the documents sought to be produced by way of additional evidence. Then it should have found out are those documents necessary to enable it to pronounce judgment. If after scrutiny of the documents sought to be produced as additional evidence if the Appellate Court had held the said documents are not genuine it vas well within its power to reject the same. But an obligation is cast upon the lover Appellate court to consider the application filed under Order 41 Rule 27 CPC along with the case on merits and hold whether those documents are really necessary in order to do justice between the parties. If such an exercise is hot done by the lover Appellate Court it would amount to failure to exercise the jurisdiction which is vested in it in law. In the instant case, if the documents sought to be produced on behalf of the plaintiff shows that on 12.2.1980 mutation entry vas made in the name of both the brothers on the basis of inheritance and o the basis of the statement given by their mother, the theory of partition of 1975 set up by the defendant may not stand. At any rate that is an exercise the lover Appellate Court ought to have done when such a request was done, unfortunately though the application was taken, the defendant filed his objections to the said application, the order sheet in the case do not indicate the consideration of the said application by the lower Appellate Court. The impugned judgment accused decree of the lover Appellate Court do not refer to the filing or consideration of the said application. Therefore, it is clear that the lower Appellate Court has not considered the said application which it ought to have dons. In that view of the matter, the judgment and decree of the lower Appellate Court cannot be sustained and is liable to be set aside and the matter has to be remanded to the lower Appellate court for considering the appeal afresh along with the application for additional documents.

Consequently, this Court allowed the appeal, sat aside the judgment and decree of the lover Appellate Court and remitted the matter to the lower Appellate Court with a direction to consider the application of the plaintiff under Order 41 Rule 27 of CPC on merits along with tie appeal and pass appropriate Orders.

After such remand, the plaintiff filed one more application under Order 41 Rule 27 of CPC to produce another document, which according to the plaintiff is material and disproves the case put forth by the defendant regarding the earlier partition. This lower Appellate Court considering both these applications found that the documents sought to be produced by the plaintiff refer to the suit properties and these documents are material documents for just decision in the case. In that view of the matter, the lower Appellate court allowed the application filed under order 41 Rule 27 of CPC and permitted the plaintiff to produce additional documents. However, instead of considering the effect of the document by itself, the lower Appellate Court in exercise of its power under Order 41 Rule 23A of CPC thought it fit to remand the entire matter to the trial Court after permitting the parties to land additional avidance, if any, on those documents And to consider the additional evidence and then to pass the judgment on merits. For that purpose, the lover appellate Court set aside the judgment and decree of the trial court and remanded the entire matter to the trial court for fresh consideration. It is against this judgment of the lower Appellate Court remanding the suit to the trial Court after setting aside the judgment and decree, the defendant has presented this appeal. The lower Appellate court in its judgment has set out the details of the documents permitted to be produced, and also the reasons stated by the plaintiff-appellant as to why those documentary evidence could not be produced before the trial court. The lover Appellate court has also recorded a finding that these documents are relevant, material and have great bearing on the crucial question as to whether or not there was an oral partition on 15.3.1975 between the brothers. This Court while remanding the matter to the lower Appellate Court has noticed that the specific case of the plaintiff is that after the death of their father they along with their mother gave Wardhi to the revenue officials and got mutation entries made in their name on the basis of inheritance. It is further observed therein that if the documents sought to be produced on behalf of the plaintiff shows that on 12.2.1962 mutation an try was made in the name of both the brothers on the basis of the statement made by their mother then the theory of oral partition raised by the defendant may not stand. In the light of the said observation and in view of the observations of the lower Appellate Court that the additional documents now sought to be produced by the plaintiff are material and they have greater bearing on the crucial question as to whether or not there vas an oral partition on 15.3.1975 between the two brothers as contended by the defendants, I do not see any error in the lower Appellate court exorcising its jurisdiction vested in it in allowing the said application. No doubt, the lower Appellate Court itself could have recorded further evidence, if any, on the documents now permitted to be produced and recorded its own finding in the light of the contents of those documents. However, the trial Court for the reasons set out in its judgment is of the opinion that the matter requires to be enquired into by the trial Court afresh by giving opportunity to both the parties and to record its own finding, Order 41 Rule 23 deals with the power of remand by the Appellate Court, if the trial Court had disposed of the suit upon a preliminary point and that judgment and decree is net aside in an appeal, Order 41 Rule 23(A) empowers the appellate court to remand the cases to the trial Court after setting aside the judgment and decree of the trial Court passed otherwise then on a preliminary point also, if the Appellate Court considers that a retrial is necessary, in such circumstances, the Appellate Court shall have the same powers as it has under Order 41 Rule 23. In the case on hand, the lover Appellate Court has found that a retrial is necessary in the light of the additional documentary evidence placed by the plaintiff on record. By remand of the matter to the trial court, no prejudice is caused to the appellant-defendant as he would have all the opportunity of placing additional evidence in support of his case in rebuttal to the additional evidence now admitted by the lover Appellate court. However, it is made clear that in the light of the additional evidence now permitted to be produced by the plaintiff, the question that is required to be considered by the trial Court is as to whether the additional documents produced by the plaintiff would disprove the oral partition dated 15.3.1975 as contended by the defendant between the two brothers. Depending upon the findings on this issue, the trial Court will have to proceed to pass appropriate orders.

In view of the above, I do not find any grounds to interfere with the judgment of the lower Appellant court remanding the suit to the trial Court. Accordingly, the appeal is rejected. The trial Court shall dispose of the matter expeditiously, at any rate before the end of July 2009.