P*HON’BLE SRI JUSTICE L.NARASIMHA REDDY +C.M.A. No.798 of 2008 %20.10.2009 # Kandi Chokka Reddy and another. ..... APPELLANTS AND Kandi Linga Reddy. .....RESPONDENT ! Counsel for the appellants: SRI T. RAMULU ^ Counsel for the respondent: SRI P.V.VIDYASAGAR. < Gist: > Head Note: ? Cases referred: -NIL- IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY C.M.A.NO : 798 of 2008 Between: Kandi Chokka Reddy and another. ..... APPELLANTS AND Kandi Linga Reddy. .....RESPONDENT JUDGMENT: Excessive importance given to the procedural aspects has driven the parties to this civil miscellaneous appeal from one Court to another without any tangible result. The respondent filed O.S.No.170 of 1995 in the Court of Junior Civil Judge, Sulthanabad, against the appellants, for the relief of declaration of title and perpetual injunction in respect of the suit schedule land. He stated that he purchased the suit schedule land i.e., Ac:0-12 guntas, through unregistered document in the year 1997, from the father of the appellants. He further pleaded that ever since the date of purchase, he is in possession and enjoyment of the property. The appellants, on the other hand, stated that their father died much before the alleged sale and that the document is a forged one. Through its judgment, dated 14.12.2001, the trial Court dismissed the suit, holding that the respondent failed to prove the title as well as the possession vis- à-vis the suit property. The respondent filed A.S.No.3 of 2002 before the Court of Senior Civil Judge, Peddapalli. In its judgment, dated 26.08.2004, the lower appellate Court expressed its views on the question of title as well as possession. However, it remanded the matter to the trial Court, on the ground that the applications filed by the respondent under Rule 6 of Order XVI and Rule 27 of Order XLI CPC at the stage of appeal were allowed. Aggrieved by the judgment and decree in A.S.No.3 of 2002, the appellants filed S.A.No.1403 of 2004 before this Court. The second appeal was disposed of on 24.01.2005, holding that the same is not maintainable and directing return of the papers to enable the appellants to present an appeal under Order 43, before a “proper Court”. The appellants filed C.M.A.No.16 of 2005 before III Additional District Judge, Karimnagar. The appeal was allowed on 23.08.2006. The respondent filed C.R.P.No.5625 of 2006 against the judgment in C.M.A.No.16 of 2005 before this Court. The CRP was allowed on 23.04.2008 on the ground that the District Judge did not have jurisdiction to entertain the Civil Miscellaneous Appeal, since it was against a decree in appeal. In view of this development, the appellants filed this Civil Miscellaneous Appeal under Rule 1 of Order XLIII CPC. Sri T. Ramulu, learned counsel for the appellants, submits that in A.S.No.3 of 2002, the lower appellate Court expressed its views on two important questions, namely, the title and possession against the respondent and still, it remanded the matter to the trial Court. Learned counsel submits that such a step only would enable the respondent to fill the gaps and lacunae. He submits that the orders passed in the I.As., filed under Orders XVI and XLI CPC by the lower appellate Court, are untenable. Sri P.V.Vidyasagar, learned counsel for the respondent, on the other hand, submits that the appellants were pursuing wrong and imperfect remedies causing enormous hardship to his client. He submits that the views expressed by the lower appellate Court, while remanding the matter, have to be treated as tentative and not as final. Learned counsel submits that the lower appellate Court was satisfied about the effort made by the appellants for summoning the sale deed as well as to receive the additional evidence. The learned counsel for the respondent raised a preliminary objection as to the maintainability of the Civil Miscellaneous Appeal. It is on the ground that in C.R.P.No.5625 of 2006, this Court upheld the judgment in A.S.No.3 of 2002 that ordered remand of the matter to the trial Court and it is not open to the appellants to file the Civil Miscellaneous Appeal. In this regard, it needs to be observed that CRP No.5625 of 2006 was filed against the order in CMA No.16 of 2005 passed by the Court of III Additional District Judge, Karimangar. The CRP was allowed only on the ground that the District Court did not have the jurisdiction to entertain the CMA and it was only in this Court, that such a miscellaneous appeal was maintainable. The reason is that the CMA itself arose out of an appeal. Having expressed this view, this Court proceeded to observe that the judgment in A.S.No.3 of 2002 was not liable to be interfered with in C.M.A.No.16 of 2006. No discussion was undertaken as to the merits of the judgment in A.S.No.3 of 2002. To be precise, the observations of this Court in CRP read as under: “When the appeal is disposed of by a Subordinate Judge, the Second Appeal would lie against the said order to the High Court, so also the C.M.A., would also be so entertainable only by the High Court, but not the district Court. I am, therefore, inclined to accept the plea of the revision petitioner in this regard. So far as the merits of the case is concerned, the appellate court discussed the entire evidence when the order in question is only a remand order. After considering the entire material available on record, I am of the view that the C.M.A. lies to the High Court, but not to the District Court against the judgment remanding the matter by the Senior Civil Judge and the appellate Court ought not to have gone into the merits of the case, instead of considering whether it is a fit matter to be remanded for fresh disposal. In the light of the above circumstances, the revision petition is allowed. The order under revision dated 23.08.2006 is set aside. The judgment in A.S.NO.3 of 2002 is not liable to be dismissed and the trial Court is directed to restore the suit covered by O.S.No.170 of 1995 to its original file and dispose of the same on merits after giving opportunity to both parties afresh as expeditiously as possible as the suit is of the year 1995. No order as to costs. Without any disrespect to the learned Judge, who passed the order in the CRP, it may be noted that the occasion to deal with the judgment in A.S.No.3 of 2002 on merits, did not arise. The direction as to restoration of the suit does not accord with the known procedure. On account of the procedural defects at various stages, the parties were driven from one Court to another Court and the actual issue was not addressed, as required under law. Hence, this objection is overruled. The respondent filed the suit for the relief of declaration of title and perpetual injunction. The trial Court framed the following issues for its consideration: 1. Whether the plaintiff has acquired ownership and possession of the suit land by virtue of the sale deed set up by him? 2. Whether the sale deed set up by the plaintiff is true, valid and binding on the defendants? 3. Whether the suit of the plaintiff is within limitation? 4. Whether the plaintiff is entitled for a declaration of title and perpetual injunction as prayed for? 5. To what relief? To prove his case, the respondent examined P.Ws.1 to 6 and Exs.A1 to A15 were marked. On behalf of the appellants, D.Ws.1 to 3 were examined and Exs.B1 to B12 were marked. The trial Court dismissed the suit on finding that the respondent failed to prove the title and possession. In A.S.No.3 of 2002, preferred by the respondent, the lower appellate Court framed only one point for consideration, namely, whether the plaintiff is entitled for declaration as owner and possessor of the suit land, and if so, whether the plaintiff is entitled for perpetual injunction. In the appeal, the respondent filed I.A.No.1193 of 2004 under Order XVI Rule 6 CPC for a direction to the Sub-Registrar to produce the relevant registers in relation to the sale deed, dated 10.07.1978, and I.A.No.1194 of 2004 under Rule 27 of Order XLI CPC to receive additional evidence. Both the applications were allowed just before the judgment in the appeal was rendered. The lower appellate Court recorded a categorical finding to the effect that the respondent failed to prove his title. On the question of possession also, almost a final view was expressed. However, on the sole ground that I.A.Nos.1193 and 1194 of 2004 were allowed, the matter was remanded to the trial Court. In a way, it was indicated that the disputed document, Ex.A1, has to be referred to handwriting expert for comparison with the undisputed thumb impression. The entire approach of the lower appellate Court is untenable in law. An order of remand can be passed only when it is found that the evidence, which otherwise were to have been taken into account, was not permitted or that any serious lapse has occurred in the proceedings before the trial Court. One recognized principle is that whenever an appellate Court feels the necessity of remanding the matter to an inferior Court, it must desist from expressing views on any aspect. Otherwise, it would become a contradiction, in terms. If a finding is recorded by the lower appellate Court, the very basis or purpose of remanding the matter to the trial Court will cease to exist. The lower appellate Court did not keep these aspects in view and remanded the matter to the trial Court. Hardly, any relevant exercise was undertaken by the lower appellate Court, before it allowed the I.A. filed under Rule 6 of Order XVI CPC. The application was totally irrelevant at that stage. The necessity to seek such a relief would have arisen, if only a case is made out for sending the document to a handwriting expert, that too, at the appellate stage. Almost pre-supposing that such a necessity has arisen, I.A.No.1193 of 2004 was allowed. So far as I.A.No.1194 of 2004 is concerned, hardly, it was mentioned as to what factors prevented the respondent from making such a request before the trial Court. It is not as if the documents mentioned therein have come into existence, after the disposal of the suit by the trial Court. The appeal was disposed of two days after the I.As. were allowed. There was no opportunity for the appellants to assail the validity of the orders in the I.As. Once it is found that the order of remand made by the lower appellate Court is untenable, the two courses are open. One is to set aside the order of remand and require the lower appellate Court to decide the matter afresh. The second is, for this Court to hear the appeal itself on merits. The learned counsel for the respondent submits that taking up the appeal for hearing by this Court would lead to certain complications, and is fraught with deficiencies, such as absence of record. For the foregoing reasons, the Civil Miscellaneous Appeal is allowed, and the judgment and decree, dated 26.08.2004, in A.S.No.3 of 2002 on the file of the Senior Civil Judge, Peddapalli, are set aside. The lower appellate Court is directed to decide the matter on merits. The orders passed in I.A.Nos.1193 and 1194 of 2004 are set aside. In case, the respondent intends to press them, they shall be considered on their own merits and the lower appellate Court shall not consider the feasibility of remanding the matter under any circumstances. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Date:20.10.2009 Note: L.R. copy to be marked. sj