1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE31T DAY OF AUGUST, 2016 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA MISCELLANEOUS SECOND APPEAL NO.55/2016 BETWEEN: SRI GOPALA S/O. SIDDASHETTI, AGED52YEARS CHIKKAMASEEDI ROAD, PANDAVAPURA TOWN MANDYA DISTRICT-571 428. (BY SRI R.PRAMOD, ADV.) AND: REVANNA J., S/O. JAVAREGOWDA AGED50YEARS, R/O. BEERASHETTAHALLI VILLAGE, PANDAVAPURA TALUK MANDYA DISTRICT – 571 428. ...APPELLANT (BY SRI PRABHUGOUD B. TUMBIGI, ADV.) ... RESPONDENT2THIS MSA IS FILED UNDER S.100 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED1403.2016 PASSED IN R.A. NO.3/2014 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., PANDAVAPURA, ALLOWING THE APPEAL FILED UNDER ORDER
41RULE1AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED2001.2014 PASSED IN O.S.NO.307/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC., PANDAVAPURA, REMANDING BACK THE MATTER TO THE TRIAL COURT TO PROVIDE OPPORTUNITIES TO BOTH SIDES WITH REFERENCE TO THE ADDITIONAL EVIDENCE PRODUCED AT THE APPELLATE STAGE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
The plaintiff is the appellant. He filed O.S. No.307/2009 in the Court of Civil Judge, Pandavapura to pass decree of permanent injunction and restrain the defendant from interfering into his possession and enjoyment of the suit schedule property. Written statement was filed and the suit contested by the defendant. Issues having been raised and during trial the plaintiff got examined himself as PW1 and examined two witnesses as PW2 and PW3 and marked Exs. P1 to P36. The defendant got examined himself as DW1 and examined two witnesses as DWs 2 3 and 3 and marked Ex.D1. By a Judgment dated 20.01.2014, the suit was decreed.
2. The defendant preferred R.A. No.3/2014 in the Court of Addl. Senior Civil Judge, Pandavapura. I.A.2 was filed for permission to adduce additional evidence in terms of Order XLI Rule 27 of CPC. I.A.2 was taken up for consideration along with the appeal. By reason of the impugned Judgment dated 14.03.2016, First Appellate Court allowed I.A.No.2 and also the appeal and set aside the Judgment and Decree passed by the Trial Court and remanded the case to Trial Court to provide opportunity to both parties to produce additional evidence. Feeling aggrieved, the plaintiff filed this appeal.
3. Sri R. Pramod, learned advocate for the appellant contended that merely on account of allowing of I.A.No.2 and permission granted to adduce additional evidence, the entire case could not have been remanded to the Trial Court for fresh disposal after recording further evidence. Learned counsel submitted that the Court below 4 has not kept in view the provisions under Order XLI Rule 28 of CPC and hence interference is warranted.
4. Sri Prabhugoud B. Tumbigi, learned advocate for the respondent on the other hand contended that the Court below having found that the documents sought to be produced along with I.A.No.2 are required to be admitted in evidence and as the defendant should be given opportunity to mark the same, remanding of the case to the Trial Court is justified. Learned counsel submitted that no prejudice having been caused to the appellant, no case exists for interference.
5. In view of the rival contentions, the point for consideration is, whether the First Appellate Court has committed material error and illegality in passing the impugned Judgment?.
6. Four issues having been raised in the suit, both parties have adduced oral and documentary evidence. It is with reference to the said evidence the suit was decreed 5 and the defendant was restrained from interfering into the plaintiff’s peaceful enjoyment of the suit schedule property.
7. The defendant preferred the first appeal assailing the decree passed by the Trial Court and filed I.A.No.2 and sought permission to adduce additional evidence in terms of Order XLI Rule 27 of CPC. I.A.No.2 was opposed by the plaintiff. The First Appellate Court has raised the following points for consideration:
1. Whether the appellant has made out a sufficient ground for production of the additional evidence and documents as pleaded in the I.A.No.2 at the appellate stage?.
2. Whether the impugned judgment and decree dated:20.01.2014 passed by the trial court are erroneous, perverse, capricious and arbitrary?.
3. Whether the Judgment of the Trial Court calls for interference by this Court?. What order or decree?. Finding that the documents proposed to be 4.
8. produced along with I.A.No.2 are the certified copies obtained from a Court and being of the view that to decide 6 the appeal additional evidence is very much necessary, I.A.No.2 was allowed. Despite finding that the Appellate Court can take such evidence, First Appellate Court has arbitrarily concluded that it is necessary to remand the case to the Trial Court by setting aside the Judgment and Decree, impugned in the appeal. By being of the view that to avoid hardship to the plaintiff, cost can be imposed and a time bound direction issued, cost of `500/- was ordered to be paid to the plaintiff and the Trial Court was directed to decide the suit within six months’ period.
9. When an application for additional evidence is to be allowed, Appellate Court has two options. It may record the evidence itself or it may direct the Trial Court to do so, as is clear from Order XLI Rule 28 of CPC, which is reproduced hereinbelow for ready reference: “28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.” 7 10. Merely because I.A.No.2 was allowed and the defendant – appellant permitted to produce additional evidence, in my opinion, First Appellate Court could not have set aside the Judgment and Decree under challenge in the appeal and directed the Trial Court to decide the suit after taking the additional evidence by providing opportunity to both parties. Such an order of remand could be only in terms of Order XLI Rule 23 and/or Rule 23-A of CPC. Neither of the said provisions, including Order XLI Rule 25 CPC have any application in the present case. The reasoning of the First Appellate Court to set aside the Judgment passed by the Trial Court and remand the case, as appearing in para Nos.19, 20 and 21 of its judgment being contrary to law is wholly arbitrary and capricious. Mere allowing of I.A.No.2 could not be the ground for setting aside the decree passed by the Trial Court and remitting the case to the Trial Court.
11. In SHANTI DEVI Vs. DAROPTI DEVI, (2006) 13 SCC775 the respondent filed a suit for declaration and 8 consequential relief which was dismissed as not maintainable being hit under Order II Rule 2 of CPC. However, the Trial Judge had also dealt with the other issues involved in the suit. An appeal having been filed, the Appellate Court having found that the learned Trial Judge wrongly framed the issue and being of the view that the onus of proof was on the plaintiff and not on the defendant, the case was remanded for determination afresh. The defendant having approached the Apex Court and contended that having regard to the fact that four issues were framed by the Trial Court and findings recorded, the Appellate Court could not have indirectly set aside the findings on all the issues, although the Appellate Court purported to have remanded the matter only on the premise that the Trial Judge was not correct in holding that the burden of proof on issue No.4 was on the plaintiff, the Apex Court while modifying impugned Judgment passed by the Appellate Court and while directing the High Court - Appellate Court to proceed to determine the appeal on its 9 own merit, i.e., upon receipt of the evidence from the Trial Judge, has held as follows: “13. But the same by itself could not be a ground for remitting the entire suit to the learned trial Judge upon setting aside the decree of the learned trial Court. The power of remand vests in the appellate court either in terms of Order 41 Rules 23 & 23-A or Order 41 Rule 25 of the Code of Civil Procedure.” 12. As the provisions under Order XLI Rules 23 and 23-A or 25 of CPC have no application to the present case, the Judgment of remand passed being arbitrary and illegal cannot be sustained. In the result, the appeal is allowed in part and the impugned Judgment passed is modified. R.A. No.3/2014 is restored to the Court of Senior Civil Judge, Pandavapura. The First Appellate Court shall specify the point(s) to which the evidence is to be confined i.e., on the documents produced along with I.A.No.2 and decide the appeal within a period of four months from the next hearing date. 10 Both parties are directed to appear in the Court of Addl. Senior Civil Judge, Pandavapura on 24.09.2016 and receive orders. All the contentions of both parties are left open. Sd/- JUDGE sac*