Thippamma vs Khemya Naik

T.N. Vallinayagam, J.—The Appellant has preferred the appeal aggrieved by the order dated 29.6.2000 passed by the Prl. District Judge at Raichur in R.A. No. 9 of 1998 in setting aside the judgment and decree dated 17.1.1998 passed by the Prl. Civil Judge (Sr. Division) Raichur in O.S. 10 of 1990 and remanding the suit for fresh disposal.

The suit is for a declaration that the Plaintiffs are the absolute owners in possession of the suit land in Sy. No. 50/1 measuring 15 acres 6 guntas situated at Gorebal village of Lingasugur Taluk and for injunction against the Defendant from interfering with their possession. Apart from a declaration about the void nature of the mutation entry by the Village Accountant. The claim was based upon the sale of the property by the second Defendant under a sale deed dated 9.12.1988 for Rs. 15,000/-. The first Defendant managed to mutate the entry in her name and claimed that she is the absolute owner of the property. The sale deed was questioned including the capacity of the vendor and also its consideration.

The trial Court framed eight issues altogether. By judgment dated 27.10.1994, upholding the sale by the second Defendant but at the same time holding that the execution was not for family necessity. However, on the question of jurisdiction, the plaint was directed to be returned for presentation before the proper Court. An appeal in Miscellaneous Appeal 13 of 1994, the District Court by judgment dated 20.11.1996, set aside that finding and held that the Court has pecuniary jurisdiction. On remand the trial Court took up the matter further and holding that the final order to be passed was not to rehear all issues but only to confirm the earlier issues as found by the previous Court and ultimately dismissed the suit. On such dismissal, the Plaintiff took the matter further by way of regular appeal to the District Judge, again took the view for the second time that the Court has no pecuniary jurisdiction and returned the plaint for proper presentation. It is this order that is being challenged in the above Miscellaneous Second Appeal.

Though the appeal was posted for admission, by the consent of both the Advocates, the appeal itself taken up for final disposal.

The contention of the Appellant before this Court is that the remarks made by the lower appellate Court against the predecessor about causing miscarriage of justice is not proper. It is further submitted that Order 43 or (sic) of CPC has not been followed. Even the precondition laid down in Order 41, Rule 25 has not been considered.

I have considered the submissions made by the both the Counsel.

Prima facie the judgment of the appellate Court is not sustainable. The appellate Court appears to be exercising the powers under Order 47, Rule 1, namely, review, is attempting to review the order passed by the previous Judge in Miscellaneous Appeal 13 of 1994 which has become final. Once the order passed in Miscellaneous Appeal No. 13 of 1994 had become final, the question of further reviewing the same or challenge the findings rendered therein is not within the purview of the latter Judge. The same appellate Court cannot assume the power as if it is the second appellate Court or as if it has got appellate powers to deal with the judgment in Miscellaneous Appeal No. 13 of 1994. This one ground is sufficient to set aside the finding.

The appellate Court also has not appreciated the powers under Order 41, Rule 23 or 23A or 25 read with Section 107 Code of Civil Procedure.

Section 107 CPC defines the powers of the appellate Court, that is, (1) to determine a case finally; (2) to remand a case; (3) to frame issues and refer them for trial and (4) to take additional evidence or to require such evidence to be taken. in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, , the Supreme Court has held that the appellate Court can exercise powers of remand under the circumstances mentioned in Order 41, Rules 23 and 25.

Order 41, Rule 23, as amended by Karnataka under ROC 2296 of 1959, is as follows:

Order 41, Rule 23-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court, in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the Appellate Court may by order remand the case, the may further direct what issue or issues shall be tried in the case so remanded, and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Under the above Rule the Courts have uniformly condemned the tendency of remand as it tends to cause delay and extends the litigation adding to the woes of the parties.

In Executive Engineer, T.C. Division, K.S.E. Board, Palghat Vs. J.H. Sharma and Another, , it was held that power of remand should be exercised sparingly. Endeavour of the appellate Court should be to dispose of the case itself. In Agneshwar Swamy v. Govinda AIR 1949 Mad 394, the High Court held "there can be remand only when it is necessary to set aside the decree on the material placed before it. In Ashwinkumar K. Patel Vs. Upendra J. Patel and Others, , the Supreme Court held "power of remand should not be ordinarily exercised merely because in its view reasoning of the lower Court in some aspects was wrong.

In Kartar Singh v. Rameshwari Kela, the Delhi High Court in AIR 1995 Delhi p. 73, has held "where all the evidence has been duly placed before the trial Court and it has decided the suit on merits on the several issues involved, the appellate Court has no power to remand. Where no issue was left undecided, an order of remand cannot be passed, remand is not meant to provide fresh opportunity to a party to litigate. In fact in Baraboni Coal Concern Ltd. Vs. Ram Chandra Marwari, , and also in Vastad v. Karman, reported in 40 MLJ 528, the principle laid down was "when there is a remand under Rule 23 or 25 or inherent power the matter finally disposed of by the order of remand, the same cannot be reopened when the case comes back on appeal from the final decree. In Dilip Kumar Roy and others Vs. Panchkari Sinha and others, , it is held "when certain matters are finally disposed of by the order of remand cannot be reopened when the case comes back from the lower Court by way of appeal to the same appellate Court".

In the present case, the matter was disposed of after the same was remanded by the very same appellate Court in Miscellaneous Appeal No. 13 of 1994.

In the light of the above legal position, the order of the appellate Court is set aside and the appellate Court is directed to dispose of the appeal on merits. As the suit is pending for nearly ten years and the Plaintiff was driven from post to pillar and pillar to post, the appellate Court is directed to dispose of the appeal within a period of three months from the date of receipts of records as well as the copy of the judgment.

In the result, the Miscellaneous Second Appeal is allowed. No costs.