THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No. 539 of 2008 DATE:09.10.2009 Between: Nagisetty Sailasree … Appellant And Ramadevi Masthan Rao … Respondent THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No. 539 of 2008 ORDER: The respondent filed O.S.No.1349 of 2002 in the court of the I Additional Junior Civil Judge, Nellore, against the appellant, for recovery of Rs.40,000/- with interest. The appellant opposed the suit by filing a written statement. Apart from other facts, she pleaded that her husband, from whom she got a decree of divorce, had manipulated a promissory note and arranged to file the suit. The trial court framed necessary issues and dismissed the suit, through its judgment, dated 05.07.2005, on a finding that the promissory note was not supported by consideration. The respondent filed A.S.No.142 of 2005 in the court of the I Additional District Judge, Nellore. Through its judgment, dated 05.03.2008, the lower appellate court remanded the matter to the trial court. The same is challenged in this C.M.A. Heard Sri V.S.R.Murthy, learned counsel for the appellant, and Sri L. Venkateswara Rao, learned counsel for the respondent. The trial court framed the following issues for consideration: 1) Whether the plaintiff is entitled for the suit amount as prayed for? 2) Whether the suit pronote is not supported by the consideration as pleaded in the written statement? 3) To what relief?” The respondent examined P.Ws.1 and 2 and filed Exs.A.1 to A.3. The appellant deposed as D.W.1 and filed Exs.B.1 to B.3. All the issues were answered against the respondent. It is rather curious to note that the lower appellate court had travelled far beyond the scope of the suit. This is manifest from the scope and contents of the points framed by it for consideration. After discussing the matter briefly, with reference to those points, the lower appellate court remanded the matter to the trial court, with a direction to frame the following additional issues: 1) Whether the marriage of the defendant and her husband Nagisetty Venkateswarlu was dissolved and whether they are living separately? 2) Whether there are grudges between the defendant and her husband? 3) Whether the husband of the defendant by name Nagisetty Venkateswarlu, who bore grudge against the defendant, fabricated the suit pronote colluding with the plaintiff taking advantage of the signatures of the defendant on blank pronote? This Court is of the view that the approach adopted by the lower appellate court is totally unsustainable in law. It appears that the lower appellate court was searching for a ground to remand the matter, on one pretext or the other. It is rather curious and surprising that a point was framed on this aspect. The law is fairly well settled, as regards the circumstances under which the matter can be remanded to the trial court. Reference is made to the judgments of this Court in Kolasani Ramulu (died) per L.Rs. Vs. Jagarlamudi Radhakrishna Murthy and others[1], Routhu Venkataratnam Vs. Miryala Venkata Rao and another[2], and Sri Rama Agencies, Mahabubnagar v. Machani & Machani Agro Chemicals, Kurnool District[3]. It was categorically held that it is only when the circumstances mentioned in Rules 23 and 23-A of Order 41 exist, that the possibility of remanding the matter to trial court can be considered by lower appellate court. The view taken by the lower appellate court is contrary to law laid down by this Court. Further, the lower appellate court widened the scope of the suit. It was filed for recovery of amount, on the strength of a promissory note. The additional issues, that were directed to be framed, are totally un-related to the controversy in the suit. To justify her plea that the suit was the handiwork of her former husband, the respondent has placed, before the trial court, Ex.B.3-certified copy of decree granted in O.P.No.31 of 2001. The direction issued by the lower appellate court in a way needs the trial court to examine the validity or otherwise of the said decree. Hence, the Civil Miscellaneous Appeal is allowed and the judgment and decree under appeal are set aside. The lower appellate court is directed to hear the matter afresh, and dispose of the appeal on merits. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY, J 9th October, 2009 CBS HON’BLE SRI JUSTICE L. NARASIMHA REDDY C.M.A.No.539 of 2008 9th October, 2009 CBS [1] 2004(2) ALT 820 [2] 2005 (1) ALD 792 [3] 2008(1) ALD 712