HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.366 OF 2007 Dated 18-2-2011 Between: R.C.Unnithan alias Mani. …Appellant. And: P.N.Unnithan and another. …Respondents. HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.366 OF 2007 JUDGMENT: This appeal is directed against decree and judgment dated 31-10-2006 rendered in A.S.No.157 of 2004 on the file of the 4th Additional District Judge, Visakhapatnam preferred for setting aside decree and judgment dated 6-2-2004 rendered in O.S.No.75 of 1996 on the file of Principal Senior Civil Judge at Visakhapatnam remanding the matter to the trial Court for adducing necessary evidence with regard to certain documents and disposing of the suit taking into consideration the entire evidence on record. 2. The appellant herein is the 1st defendant and the respondents herein are the plaintiff and 2nd defendant respectively in the suit. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the trial Court. 3. Heard both sides. 4. The plaintiff filed the suit for reliefs which read as follows: (1) To give a direction to the 1st defendant to render the accounts with regards to the business of Marina Aids N Appliances from June, 1993 to January 1996 and (2) for the payment of received amount due to the plaintiff and (3) for a declaration that the plaintiff is entitled to the amount lying in the Current Account bearing No.68 of Marine Aids N Appliances opened in the 2nd defendant-Bank and (4) for a direction to the 2nd defendant to pay the amount lying in the said account to the plaintiff. 5. The pleas taken in the plaint are as follows: The plaintiff is a retired Navel Officer. He started his own business under the name and style of Marine Aids N appliances as a proprietary concern for carrying out repairs, servicing of marine electrical and electronic equipment. The plaintiff obtained necessary orders from various departments. The 1st defendant is the cousin of the plaintiff being son of his junior paternal uncle. At the instance of the plaintiff, the 1st defendant started attending the business along with the plaintiff. Being a close relative of the plaintiff, the later reposed immense confidence in the former and allowed the former to deal with the business on his behalf. Subsequently, the plaintiff got offer from Saudi Arabia to join job on attractive terms for a period of two years and therefore, he went to Saudi Arebia in the month of June, 1993. Therefore, while leaving Visakhapatnam, the plaintiff entrusted the business to the 1st defendant to manage on his behalf. The plaintiff also handed over to the 1st defendant, blank cheque books duly signed by him to be used for the business. Further after the completion of the assignment, the plaintiff returned to Visakhapatnam with a view to continue his business and then asked the 1st defendant about the financial matters of the business for which the 1st defendant gave evasive replies. Further on enquiry, the plaintiff came to know that account in Federal Bank opened by the plaintiff was not being operated by the 1st defendant and on the other hand, the 1st defendant opened current account in the 2nd defendant Bank in the name of Marina Aids N Appliances and started depositing cheques received from various departments therein. He also claimed that substantial amount was lying in the bank account belonging to him. Hence, the suit was filed in the name of the 1st defendant. 6. The 1st defendant filed written statement in which it is mainly contended that at the time of leaving Saudi Arebia, the plaintiff handed over the business to him giving up his entire claim therein executing Ex.B.5 letter dated 2.6.1995 and therefore, the claim made by the plaintiff is untrue and the suit is to be dismissed. 7. On the basis of the pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for a direction to the 1st defendant for rendition of accounts as prayed for? 2. Whether the plaintiff is entitled for declaration as prayed for? 3. Whether the plaintiff is entitled for the relief of direction to D.2 as prayed for? 4. To what relief? 8. On behalf of the plaintiff, the plaintiff got himself examined as P.W.1 and also examined one F.W.J.Ali Adams as P.W.2 and got marked Exs.A.1 to A.14. On behalf of the defendants, the first defendant got himself examined as D.W.1 and got marked Exs.B.1 to B.5. 9. Basing on the material available on record, the trial Court observed that the plaintiff failed to substantiate his claim and dismissed the suit. Aggrieved by the same, the plaintiff preferred the Appeal in A.S.No.157 of 2004 before the 1st appellate Court. 10. While disposing of the 1st appeal, it is observed by the 1st appellate Court after examining the material available on record that so far as Exs.B.5 is concerned, the case should be decided only on the basis of evidence available and no further opportunity should be given to fill up any lacunas and moreover, no further request was also made in that behalf and it was not necessary to go into that aspect. Surprisingly, it is further observed that whereas, so far as the evidence of 1st defendant in M.C.No.31 of 2000 is concerned, the plaintiff sought to mark certified copies of his depositions through P.W.2, but, the copies were not received in evidence as can be seen from the absence of any such reference made by the lower court in the judgment or anywhere and consequently remanded the matter to the lower Court with a direction to take necessary steps in that context. 11. It is the contention of learned counsel for the 1st defendant that by virtue of Section 99 C.P.C., the 1st appellate Court should not have remanded the matter to the trial Court for the said purpose when no application was filed by the plaintiff for the purpose of marking any record pertaining to the maintenance case i.e., M.C.No.31 of 2000 or when such a plea was not pressed in any way no further evidence should be allowed to be recorded under the provisions of Order 41 Rule 31 C.P.C. 12. In order to decide the appeal, it is to be examined as to whether the judgment of the 1st appellate Court in remanding the matter to the trial Court for the purpose of marking additional evidence in the light of the admission made by the plaintiff in executing Ex.B.5 letter and also in the light of other observations made by the 1st appellate Court with regards to the proof of Ex.B.5 is proper and sustainable. 13. Section 99 C.P.C. reads as follows: “No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.” 14. Further it is very significant that it is observed by the trial Court that Ex.B.5 is a true one and having executed that letter, the plaintiff relinquished his right in the business and as such he is not entitled to the reliefs prayed for. Further no application was filed by the plaintiff to mark any record with reference to the maintenance case to disprove the claim of the plaintiff. Under those circumstances it was not proper on the part of the 1st appellate Court to remand the matter for the purpose of adducing additional evidence in that regard. Therefore, in other words, the 1st appellate Court should have disposed of the 1st appeal only on the basis of the evidence recorded without taking such steps to remand the matter under those circumstances. 16. Therefore, the Judgment passed by the 1st appellate Court is not tenable and accordingly it is to be set aside. 17. In the result, the appeal is allowed and the judgment and decree passed by the 1st appellate Court are set aside and the first appellate Court is directed to dispose of the matter basing upon the material evidence already adduced afresh and independently as per law. No costs. ___________________________________ Justice G.KRISHNA MOHAN REDDY Dated 18-2-2011. Dvs HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.366 OF 2007 Dated 18-2-2011