9911796707
TMI Blog2017 (4) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... District Judge, Kadapa and confirmed the judgment and decree dated 31.12.2009 passed by the Senior Civil Judge, Kadapa in Original Suit No.62 of 2005. 3) Facts necessary for the disposal of the appeal, which lies in narrow compass, need mention infra to appreciate the controversy involved in the appeal. 4) The appellant is the plaintiff whereas the respondents are the defendants in a civil suit out of which this appeal arises. 5) The appellant filed a civil suit being O.S. No.62 of 2005 before the Senior Civil Judge, Kadapa against the respondents for declaration of his title over the suit property (described in detail in the Schedule to the plaint) and also sought permanent injunction against the respondents restraining them from int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 to SLP paper book) the first Appellate Judge allowed the appeal, set aside the judgment/decree of the Trial Court and remanded the case to the Trial Court for deciding the suit afresh on merits uninfluenced by any of the observations made by him in the judgment. The parties were granted liberty to adduce additional evidence in support of their case in the Trial Court. 9) Felt aggrieved by the aforesaid judgment, the respondents (defendants) filed C.M.A. No.645 of 2012 before the High Court under Order 43 Rule 1 (u) of the Code. 10) By impugned judgment, the learned Single Judge allowed the appeal, set aside the judgment of the first Appellate Court and dismissed the suit by restoring the judgment and decree of the Trial Court. Felt a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 41 Rule 27 of the Code. In Para 26, it was held as under: "26.............Assuming that the lower appellate Court felt that the additional documents filed by the plaintiff in the appeal before it have some bearing on the case, nothing prevented it from considering the same, giving opportunity to both parties to lead evidence and deciding the appeal......." 15) Whereas in the other part of the judgment, the learned Single Judge did not approve the approach of the first Appellate Court in granting indulgence to the appellant to fill the lacuna by adducing evidence. Be that as it may, having observed this, the High Court proceeded to examine the case on merits and eventually allowed the appeal, set aside the judgment of the first Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings on such issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself. 21) Now coming to the facts of the case, we are of the considered opinion that once the first Appellate Court allowed the application under Order 41 Rule 27 of Code and took on record the additional evidence, it rightly set aside the judgment/decree of the Trial Court giving liberty to the parties to lead additional evidence in support of their case which, in turn, enabled the Trial Court to decide the civil suit afresh on merits in the light of entire evidence. The first Appellate Court was, therefore, justified in taking recourse to powers conferred on the Appellate Court under Order 41 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- "1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court" 25) It is well settled law that the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault could be found in the finding of the first Appellate Court on this issue for the following reasons: 29) First, the additional evidence sought to be filed at the first appellate stage was held to be material and necessary for proper adjudication of the suit; and second, the reasons as to why it could not be filed during the trial also found acceptance to the first Appellate Court. 30) In order to enable the parties to have fair trial in civil suit and with a view to do substantial justice, the first Appellate Court, in our view, rightly allowed the plaintiff to file the additional documents in appeal which satisfied the requirements of Order 41 Rule 27 of the Code. 31) We cannot, therefore, concur with the reasoning and the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
