Sri Bharmappa Laxman Hukkeri vs Rama Bhima Savadi <BR> Bharama Awanna Savadi Vs Rama Bhima Savadi and Others

A.V. Chandrashekara, J.—Both these appeals have arisen out of a common judgment and decree passed in R.A. No. 57/2009 and 58/2009 which were pending on the file of the Court of Civil Judge (Sr. Dn.), Raibag. Those appeals had arisen out of a common judgment and decree passed in O.S. No. 305/1993 and O.S. No. 238/1993 respectively. Appellant in M.S.A. No. 505/2013 is the plaintiff in a suit bearing O.S. No. 238/93 filed for the relief of declaration of title and permanent injunction. This appellant was the sole defendant in O.S. No. 305/1993. Sri Rama Bheema Savadi, respondent in connected in M.S.A. No. 503/2013 is the sole plaintiff in O.S. No. 305/1993. Both these suits have been filed for the reliefs of declaration of title and permanent injunction in respect of six items of agricultural lands as described in the schedule appended to the plaint in O.S. No. 305/1993 and house bearing VPC No. 569. Both these suits had been clubbed to record common evidence. Ultimately, O.S. No. 238/1993 came to be decreed and O.S. No. 305/1993 came to be dismissed. As against the said common judgment dated 29.10.2009 regular appeals came to be filed before the Court of Civil Judge (Sr. Dn.) at Raibag in R.A. Nos. 57/2009 and 58/2009. Several grounds had been raised in both the appeals challenging the said judgment and decree. Ultimately, both the appeals have been allowed and the matter has been remanded to the Court of Prl. Civil Judge (Jr. Dn.), Raibag with a direction to send the admitted and disputed signatures and thumb impressions of the testator-Rama Bheema Savadi of the alleged Will marked as Ex.D.1 and of Ex.D.44, to the experts at the cost of the appellants. Similarly, direction is also given to send the disputed and admitted signatures and thumb impression found in Ex.D.30 to the experts.

After hearing the arguments of the learned counsel for the appellants, matter has been admitted by framing the following substantial question of law on 18.02.2014.

Whether the first appellate Court is justified in remanding the matter to the trial Court, more particularly, on an application filed under Order 26 Rule 10(A) of CPC referring the matter to the hand writing expert?

Learned counsel for appellant has already submitted his arguments and hence learned counsel for respondent has also submitted his arguments.

REASONS

First appellate Court has all the trappings of a Civil Court dealing with the original suits. If the first appellate Court comes to the conclusion that a report is required from the hand writing expert as also the finger print expert in regard to the admitted signatures vis-�-vis the disputed signatures, admitted LTMs and disputed LTMs, nothing comes in the way of the first appellate Court to send those disputed LTMs and signatures along with admitted LTMs and signatures to the respective experts and solicit a report. Instead of doing so, the first appellate Court has virtually abdicated its responsibility and has remanded the matter to the trial Court to do these works.

An appellate Court can record the evidence by itself or can get the evidence recorded by the Court, from which the appeal has arisen. Similarly, it can refer the matter directly to the expert and get a report or send the records to the trial Court with a request or direction to send the disputed signatures and LTMs along with the admitted signature and LTMs to the experts and then submit its finding thereon after recording additional evidence, if it is required But the matter cannot be sent back to the trial Court to deal afresh by holding a denovo trial. This Court in M.S.A. No. 162/2006 disposed of on 11.03.2014 has specifically held that the first appellate Court should not be tempted to remand the matter as a matter of course as the first appellate Court itself has all the trappings of a Civil Court dealing with the original suits. Apart from this, in Shanthaveerappa Vs. K.N. Janardhanachari, , this Court has specifically held that the appellate Court will have to exercise the power of remand in exceptional cases. If it was an open remand, it would have been something different. Apart from this, in Myageri''s case ILR 1985 KAR 2783, this Court has held that justice requires that a party litigant who has incurred expenses and undergone all the ordeal and problem and protracted trial in the trial Court, should not be deprived of the benefit of adjudication and the opponent must not be allowed to show some defect or mistake in the form of expression of the trial Court. Order 41 Rule 23 of CPC has been eloquently discussed in the above case. In Tejavva Vs. Veerabasappa Rudrappa Mareguddi, , this Court has specifically held that there could be no remand without the appellate Court considering the merits of the case. In this regard, the entire facts and circumstances of the case will have to be dealt at length. Therefore, the order of allowing the appeal partly and remanding the matter to the trial Court is incorrect and illegal. Hence the substantial question of law has to be answered in the negative. Anyhow there are two Courts of Civil Judge (Jr. Dn.) at Raibag and the work of these two Courts are comparatively lesser than the workload of the Civil Judge (Sr. Dn.) Court dealing with Miscellaneous First Appeals, Regular Appeals, Land Acquisition Cases, Miscellaneous matters and criminal cases. Therefore, the order that has been passed by the first appellate Court can only be considered as one limited to the extent of directing the trial Court to refer the disputed LTMs and signatures along with admitted LTMs and signatures to the concerned experts, i.e., hand writing expert and finger print expert and to receive a report thereon, and then to give opportunity for the parties to examine themselves and also to examine the experts and thereafter to submit a finding to the first appellate Court, which would deal with the whole matter in accordance with Order 41 Rule 25 and 26 of CPC. Hence the order of the first appellate Court remanding the matter to the trial Court is set aside. The order insofar as it directing the directing the trial Court to refer the disputed LTMs and signatures along with admitted LTMs and signatures to the concerned experts, i.e., hand writing expert and finger print expert is upheld.

ORDER

Appeals are allowed in part. The final order passed in R.A. Nos.57/2009 and 58/2009 are set aside.

Notwithstanding the allowing these appeals in part, it is made clear that the order of directing the trial Court to refer the disputed LTMs and signatures along with admitted LTMs and signatures to the concerned experts, i.e., hand writing expert and finger print expert is upheld. It is also made clear that after receipt of the report from the experts, i.e., hand writing expert and finger print expert, the trial Court shall record additional evidence, if any, of the parties and also to record evidence of experts, if required and then submit a finding to the first appellate Court which would deal the whole matter comprehensively.

There is no order as to costs.

The entire exercise of referring and getting the report from the experts to be done on or before 31.12.2014.