The endeavor should be to dispose of the case finally by the
first Appellate Court itself. When the trial Court after
considering the evidence, has come to a conclusion, the
Appellate court should not ordinarily remand the case. it
should see first whether it can dispose of the case itself under
Order 41 Rules 24 to 27 CPC. Only if it is not possible to do
so and it is necessary in the interest of justice to remit the
suit, remand should be resorted to. When additional evidence
is tendered in appeal, the Court should act under rule 28 and
not remand the whole case under this rule. Such an order
can be passed only in exceptional cases as, for example,
where there had been no real Trial of the dispute and no
complete or effectual adjudication of the proceeding and the
party complaining has suffered material prejudice on that
account. Remand is not meant to provide fresh opportunity to
a party to litigate. An order of remand could be made only if
the finding of the lower Court is reversed in appeal. Where
there is no reversal of the finding, the Appellate Court cannot
proceed under this rule and remand the case for a fresh
inquiry on the ground that a finding is necessary on a point
10
not dealt with in the judgment or that the inquiry has been
inadequate. A remand for the purpose of adducing fresh
evidence to explain the evidence on record, where it was
unambiguous or to cover up deficiencies or to fill in gaps is
not warranted by this rule. If an issue can be decided by the
Appellate Court on admitted facts, the empty formality of
remand must be eschewed to advance the cause of justice.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF NOVEMBER 2012
BEFORE
THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY
MISCELLANEOUS SECOND APPEAL NO.163/2011
BETWEEN:
PUTTA RANGAMMA,
2. SMT. P.V. SNEHALATHA,
... APPELLANTS
K. THIMMAPPA,
S/O. GANGASAMUDRA KARIYAPPA,
Appellants are the defendants in O.S. No.16/2004 on
the file of the Additional Civil Judge, Junior Division,
Chitradurga and the respondent is the plaintiff. The suit was
for injunction and mandatory injunction. The Trial Court
dismissed the suit against which regular appeal is filed. The
RA came to be allowed by remanding the matter for fresh
consideration after framing additional issues. The Appellate
Court while remanding the matter, framed an additional issue
No.1 and I.A. filed under Order 41 Rule 27 of CPC, allowed
3
and permitted the defendants to cross-examine the appellant
/ defendant and the Trial Court is further permitted to
record the additional evidence on additional issue No.1 and
re-submit the entire evidence to the Appellate Court. Being
aggrieved by the same, the defendant preferred this appeal.
2.
The
ground
appellant/defendant
is
urged
that
the
on
First
behalf
of
Appellate
the
Court
committed an error in framing an additional issue in the
absence of any application made by the plaintiff.
3.
The Appellate Court had exceeded its jurisdiction
in framing an additional issue with regard to the title of the
property though the prayer made by the plaintiff was not for
declaration of title. The plaintiff has not established the fact of
encroachment and interference with peaceful possession of
the property by producing Ex.P-16 and 16A. It was contended
on behalf of the defendant that the suit schedule property
was acquired for the purpose of allotting house sites under
the provisions of House Sites Act 1972 and to that effect, the
acquisition was made on 05.12.1975. Construction was put
4
up, revenue records, title deeds have been issued in favour of
the defendants. Considering all these evidence and materials,
the Trial Court dismissed the suit. The pleadings of the
parties were not in respect of title deeds. Under these
circumstances, framing of additional issue and remanding the
matter for fresh consideration is contrary to law as per
judgment of this Court and also the judgments of Hon’ble
Supreme Court.
4.
It is the case of the plaintiff / respondent that the
Appellate Court is right in framing an additional issues on
title since the Trial Court has given a finding on the title of
the properties. The Appellate Court has directed the Trial
Court to frame additional issues, record further evidence and
to re-submit the findings.
5.
The Order passed is not in contravention of the
provisions of Order 41 Rules 23 and 27 CPC since the suit is
for mandatory injunction and consequently, title of the
property has to be proved. The title has been extensively
discussed by the Trial Court. Further, he submitted that after
5
the
matter
is
remitted,
the
application
is
made
for
amendment of suit and also prayer in respect of declaration of
title of the property. The evidence of the parties has been
recorded. Under these circumstances, it cannot be interfered
by this Court.
Heard Both.
6.
The suit is filed for injunction and for mandatory
injunction to direct demolition of the illegal construction put
up by the defendants. The plaintiff has been examined as PW-
1 and he has deposed to the Court that “On 10.01.2004, the
defendant trespassed into the suit schedule property and an
attempt was made to put up a small shed. Hence, police
complaint was made”. This evidence of the plaintiff himself
shows that there was no proof that the prayer for mandatory
injunction does arise. Hence, the prayer made for demolition
of illegal structure does not arise.
7.
When an allegation of trespass and encroachment
is made for seeking the prayer of injunction, the Court has to
examine what is the extent of trespass and encroachment and
6
situation
of
schedule
property
for
the
purpose
of
encroachment. As per Ex.P-1, what is purchased by the
plaintiff in the year 1965, it looks entirely different from what
is being allotted to the Defendant No.1 in the year 1972.
Respective schedule properties are very material in order to
consider the prayer. This aspect has to be gone into before
considering the prayer.
8.
As it is held by this Court and also Hon’ble
Supreme Court that remand can be made under Order 41
Rule 23 CPC in which the Appellate Court could remand the
matter only when the suit has been dismissed on primary
issues. Exceptions to Rule 23 of Order 41 CPC, the Appellate
Court assume the power of the Trial Court in disposing the
appeal under Rule 23A. After examining the pleadings,
materials and if any applications are made before the
Appellate Court and situations if warrants to frame additional
issues, then only to that extent, the matter has to go back
with pre-conditions to re-submit the records after recording
the
evidence
and
answering
the
additional
issues
for
recording additional evidence and for considering production
7
of additional evidence Rules 27 and 28 enable Appellate Court
to record the evidence and also documents. This Court in ILR
2010 KAR 3078 held that “Court should exercise its power
conferred under Rule 23 of Order 41 of CPC and an order of
remand should not be passed ordinarily. The First Appellate
Court which has the power to analyse the factual position can
decide the issue and the additional issues. Merely because an
issue has not been raised by the Trial Court or that the
evidence on record has not been properly appreciated, the
First Appellate Court cannot resort to an open order of
remand.
9.
In ILR 2007 KAR 1127, it is held that An appeal is a
continuation of the original proceedings. In effect the entire
proceedings are before the Appellate Court and it has power
to re-appreciate the evidence. It has the power to amend the
pleadings, frame issues, resettle issues, delete issues, receive
evidence by way of additional evidence, record evidence,
summon witnesses and documents, order for commission,
pass interim orders. It can also take note of subsequent
8
events. In addition to the power of Trial Court, it has been
vested with the power of remand, power to set aside, modify,
reverse and affirm the judgment of the Trial Court. It also has
the power to entertain Cross Appeal and power to grant relief
to a party to the proceedings who has not preferred appeal
and set aside the findings recorded against the respondent in
the appellant’s appeal. Thus, the power of the first Appellate
Court is unlimited. When such is the situation, it should be
able to meet any contingency or situation and pronounce
judgment finally in order to do complete justice between the
parties. It cannot plead or feel helpless to meet any situation
arising in a case to resolve the dispute between the parties.
That is the ambit and scope of the jurisdiction of the first
Appellate Court. Therefore, the legislature has entrusted a
very important duty on the first Appellate Court, and it is for
that court to decide finally all questions of fact on which the
disposal of the suit might depend. To order retrial of a case is
a serious matter and may mean considerable waste of public
time. An order of remand should not be taken as a matter of
course. The power of remand should be sparingly exercised.
9
The endeavor should be to dispose of the case finally by the
first Appellate Court itself. When the trial Court after
considering the evidence, has come to a conclusion, the
Appellate court should not ordinarily remand the case. it
should see first whether it can dispose of the case itself under
Order 41 Rules 24 to 27 CPC. Only if it is not possible to do
so and it is necessary in the interest of justice to remit the
suit, remand should be resorted to. When additional evidence
is tendered in appeal, the Court should act under rule 28 and
not remand the whole case under this rule. Such an order
can be passed only in exceptional cases as, for example,
where there had been no real Trial of the dispute and no
complete or effectual adjudication of the proceeding and the
party complaining has suffered material prejudice on that
account. Remand is not meant to provide fresh opportunity to
a party to litigate. An order of remand could be made only if
the finding of the lower Court is reversed in appeal. Where
there is no reversal of the finding, the Appellate Court cannot
proceed under this rule and remand the case for a fresh
inquiry on the ground that a finding is necessary on a point
10
not dealt with in the judgment or that the inquiry has been
inadequate. A remand for the purpose of adducing fresh
evidence to explain the evidence on record, where it was
unambiguous or to cover up deficiencies or to fill in gaps is
not warranted by this rule. If an issue can be decided by the
Appellate Court on admitted facts, the empty formality of
remand must be eschewed to advance the cause of justice.
10.
In (1991) 3 SCC 141, it is held that if the
averments on the basis of which the court has assumed
jurisdiction are not established, the court would dismiss
proceedings on ground of failure to prove the jurisdictional
fact.
11.
In the light of the judgment, the position sets to
rest is that the Court gets jurisdictional facts on the basis of
averments contended in the complaint. Failure to establish
the averments would result in dismissal of the suit on the
ground of failure to prove the jurisdictional facts. The Court
would not ordinarily frame an issue other than the pleadings
and prayers made therein.
11
12.
remand
In 1985 KLJ 561 it is held that, an order of
should
not
be
made
merely
to
give
another
opportunity to a party which he had failed to do owing to his
own negligence. A remand cannot be ordered without
discussing the evidence and without finding out whether the
finding recorded by the Trial Court is correct or not. The
Court further referred the judgment in the case of Bachan
Pandey V/s. Dulhin Janki reported in AIR 1976 SC 866,
Balasubramania Iyer v/s. Subbaiah Thevar reported in AIR
1965 Madras 417, Channamallegowda v/s. Hullyamma
reported in 1972 MLJ short note 111, B.M. Chinnaiah Shetty
v/s. Puttabasappa and others reported in 1977(1) KLJ 31. In
the light of the judgments referred, the position of law which
arises namely that ordinarily the Appellate Court shall not
remand the matter unless it is found the irregularity in
recording the evidence etc., appreciation of evidence and
there is miscarriage of justice due to such irregularity Even
then, remand could be made only to record the evidence
properly and for the said purpose, guidelines should be given
12
for that. It is the opinion of the Apex Court that the issues not
properly framed or an additional issue should have been
framed, then only the direction could be made only to frame
such an issue and remand could be made to record finding
after framing such an additional issue. In such circumstances
also, the Trial Court has to answer the issue record the
evidence and re-submit the papers to the Appellate Court. It
is found from the judgments of the Appellate Courts that
these guidelines more particularly as incorporated under
Order 41 Rules 23 to 27 are not been followed. The judgments
of this Hon’ble Court and other High Courts and Apex Court
have not been followed.
13.
The submission of the respondent/ plaintiff that
the amendment application made before the Trial Court after
the matter is remanded would have to be considered by the
Appellate Court. Once an order of the remand is set aside,
subsequent steps taken also merges with the order being that
is set aside. If at all, he is permitted as per law under CPC, he
is at liberty to make necessary application and if such
13
application is made, it is for the Appellate Court to decide and
to pass appropriate orders. In the light of the observations
made, it is held that the appellate Court has committed an
error in remanding the matter for framing additional issues.
In the result, the appeal is allowed and the First
Appellate Court to hear the matter on merits. Both the
parties are directed to appear before the Appellate Court
on 04.02.2013.
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