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Shivalingawwa Vs. Sanganna and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtKarnataka High Court
Decided On
Case NumberMisc. Second Appeal No. 109 of 1974
Judge
Reported in1975(2)KarLJ10
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 23 - Order 43, Rule 1
AppellantShivalingawwa
RespondentSanganna and anr.
Appellant AdvocateL. Govindaraj, Adv.
Respondent AdvocateA.M. Farooq, Adv.
Excerpt:
.....judgment and decree of both the courts below are set aside. - 4. on giving my fair and anxious consideration to the matter, i am clearly of theview that the contention urged on behalf of the appellant has to be accepted as well founded. i am satisfied that on a comparison of the issues as framed by the munsiff and the learned civil judge, there is not any substantial difference at all. in this situation, the enunciation of this court in akkanagamma's case air 1968 mys 266 relied on by sri govindaraj, is clearly attracted. in any event, i am satisfied that the order of remand impugned herein is clearly uncalled for in the facts and circumstances of this case and therefore, has to be set aside......the file of the munsiff, gulbarga, and directed against an order of remand made by the principal civil judge, gulbarga, in regular appeal no. 57 of 1973. 2. the suit was filed by the first respondent herein, for a declaration of his title and for permanent injunction restraining the appellant herein (first defendant) from executing the maintenance decree in o. s. no. 82/1 of 1962 on the file of the second additional munsiff, gulbarga. the latter decree had been obtained by her against her husband --the second respondent herein. the first respondent was none other than the brother of the second respondent, the husband of the appellant. by virtue of a partition dated 9-11-1965 between the respondents inter se, a conveyance in respect of the suit property which had fallen to the share of.....
Judgment:

1. This appeal under Order 43, Rule 1 of Civil P. C. is by the first defendant in O. S. No. 243 of 1970 on the file of the Munsiff, Gulbarga, and directed against an order of remand Made by the Principal Civil Judge, Gulbarga, in Regular Appeal No. 57 of 1973.

2. The suit was filed by the first respondent herein, for a declaration of his title and for permanent injunction restraining the appellant herein (first defendant) from executing the maintenance decree in O. S. No. 82/1 of 1962 on the file of the Second Additional Munsiff, Gulbarga. The latter decree had been obtained by her against her husband --the second respondent herein. The first respondent was none other than the brother of the second respondent, the husband of the appellant. By virtue of a partition dated 9-11-1965 between the respondents inter se, a conveyance in respect of the suit property which had fallen to the share of the second respondent, came to be executed on the very next day i.e., 10-11-1965, in favour of the first respondent for an ostensible consideration of Rs. 5,000/-. The appellant herein, the maintenance decree-holder, sought for the attachment of the suit property in execution of the decree for maintenance in her favour. Since the claim of the first respondent for raising the attachment was refused, the present suit came to be filed by the first respondent. The learned Munsiff after framing the relevant issues, dismissed the suit of the first respondent herein, against which an appeal was preferred by him before the learned Civil Judge. The learned Civil Judge, without examining the appeal on merits, merely came to the conclusion that the issues as framed did not correctly reflect the position as evidenced by the pleadings of the parties. He, therefore, 'recast' the issues and set aside the judgment of the learned Munsiff and remitted the matter for further trial on the basis of the said issues. Aggrieved by this order of remand, the first respondent appeals.

3. It is contended for the appellant by Sri L. Govindaraj, the learned Counsel, that the learned Civil Judge had not exercised his jurisdiction in accordance with law. He also relied on an enunciation of this Court in Akkanagamma v. R. Nageswariah, (AIR 1968 Mys 266). But, on behalf of the contesting respondents, Sri A. M. Farooq, the learned Counsel, submitted that the principle underlying the said enunciation had been fully complied with, in that the merits of the case had been considered by the learned Civil Judge before making the order of remand.

4. On giving my fair and anxious consideration to the matter, I am clearly of theview that the contention urged on behalf of the appellant has to be accepted as well founded. I have been taken through the order impugned herein. It seems to me clear that all the issues recast except for slight verbal changes relative to the use of the word 'fraud', are involved in the issues framed by the learned Munsiff. I am satisfied that on a comparison of the issues as framed by the Munsiff and the learned Civil Judge, there is not any substantial difference at all. This apart, it is seen from the order impugned that the merits of the case on the basis of oral and documentary evidence adduced on behalf of the parties, had not been considered by the learned Civil Judge at all, as contended for respondents by Sri Farooq. In this situation, the enunciation of this Court in Akkanagamma's case AIR 1968 Mys 266 relied on by Sri Govindaraj, is clearly attracted. The relevant enunciation is:

'Before an appellate Court can make an order of remand, the relevant rule requires that it should set aside the order of the trial Court and no appellate court can set aside the order of the trial Court without examining the case on merits. Even when the rule empowers the appellate Court to remand any case where it considers it necessary in the interest of justice to make an order of remand, the opinion that the interest of justice do require or call for such an order is an opinion which can be entertained only after an examination of the merits of the case. The tentative opinion on that matter without examining the full records of the case cannot in any sense be regarded as a sound conclusion that interest of justice do require that such an order should be passed.'

5. Situations may arise, wherein, the issues have been patently wrongly framed and are not supported by the pleadings in the case. Even in such a case, the procedure enjoined is the one enounced in the same decision of Akkanagamma AIR 1968 Mys 266. It is:

'Even in cases where the appellate court comes to the conclusion that any fresh issues arise either on the pleadings as originally presented or upon pleadings as amended with its leave or order, it is not, in all cases, inevitable to make an order of remand. An amendment may also be merely clarificatory in nature. The framing of issues by the appellate Court may also be in the nature of clarification or may result in a larger number of issues than framed by the trial Court without making any particular difference to the substance of the matter or the nature of the controversy or the availability of the evidence already on record for the decision of the issues as reframed. Whenever there is sufficient evidence on record to enable the appellate court to a just and satisfactory conclusion on the points in controversy, there will be no ground whatever for making an order of remand.'

6. In the instant case, I have earlier observed that the issues as recast by the learned Civil Judge, do not at all add to or depart substantially from, the issues already settled by the learned Munsiff. It may, however, be observed that even in a case where hardly an issue or two require to be added as additional issues, it is the duty of the appellate court not to set aside the judgment in appeal, but merely retain the case on its file and call for findings on such additional or other issues as the appellate Court might deem fit and proper and after receipt of the findings from the trial Court on such issues, proceed to dispose of the appeal after allowing the parties concerned to raise such additional grounds as they may consider necessary in regard to such findings of the trial Court. In any event, I am satisfied that the order of remand impugned herein is clearly uncalled for in the facts and circumstances of this case and therefore, has to be set aside.

7. In the result, this appeal is accepted and is accordingly allowed. The order of the learned Civil Judge, Gulbarga, in Regular Appeal No. 57 of 1973 is hereby set aside. The matter, however, stands remitted to that Court for disposal of the appeal on its merits. In the circumstances, there will be no order as to costs.

8. Appeal allowed.


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