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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Subba Reddy Satti, J.
Nandigam Suresh - Appellant
Vs.
Nandigam Charumathi Devi (Died) - Respondent
Civil Miscellaneous Appeal No.205 of 2022
Decided On : 03-11-2022
Civil Procedure Code, 1908 – Order XLIII Rule 23, 1 (u) – Order 41 Rule 23(A), 25 – Order I Rule 10 – Section 151 – Permanent injunction in respect of plaint schedule property – First appellate – Plaintiff in suit filed above Civil Miscellaneous Appeal under Order XLIII Rule 1 (u) of CPC, against judgment and decree in A.S. on file of I Additional District Judge, whereby Court set aside judgment and decree in on file of Principal Junior Civil Judge, remanded matter to trial Court – Held, Appellate Court, in considered opinion of this Court ought not to have remanded matter, without framing points required for adjudication – Remand is not a matter of course as observed by Apex Court – In fact, entire evidence is already on record – Once evidence is already on record, Appellate Court being final fact-finding court shall consider same and record findings – It is to be remembered that when re-trial is ordered, it amounts to allowing party to fill in lacuna crept at trial with eyes wide open to basis of pleadings and issues raised and trial concluded – In this case on hand as observed supra, pleadings of respective parties are on record as also evidence – Appellate court ought not to have remanded the appeal to trial court by setting aside judgment – Appellate court should have decided appeal basing on pleadings and evidence on record, judgment under appeal is liable to be set aside – Appeal allowed.
JUDGMENT:
Plaintiff in the suit filed the above Civil Miscellaneous Appeal under Order XLIII Rule 1 (u) of CPC, against the judgment and decree dated 06.05.2022 in A.S.No.110 of 2013 on the file of I Additional District Judge, Eluru, whereby the first appellate Court set aside the judgment and decree dated 29.11.2012 in O.S.No.832 of 2007 on the file of Principal Junior Civil Judge, Eluru and remanded the matter to the trial Court.
2. Parties to this judgment are referred to as per their status in the suit.
3. Plaintiff filed suit O.S.No.832 of 2007 seeking permanent injunction in respect of plaint schedule property.
4. The averments, in brief, in the plaint are that the plaintiff is brother’s son of one Rayulu; that defendant is wife of said Rayulu and they have no male issues and the plaintiff was brought up by defendant and Rayulu from the age of 5 years; that plaintiff looked after the affairs of defendant and Rayulu; that out of love and affection Rayulu executed a registered Will dated 01.05.2004 in a sound and disposing state of mind and died on 26.12.2006; that under the said Will the executant bequeathed the landed property and also plaint schedule property, in which the plaintiff and his family are residing along with defendant; that as per the Will dated 01.05.2004, plaintiff has to take possession of property after life time of defendant; that except the plaintiff, no others have right in the schedule property; that defendant executed a registered sale deed dated 12.01.2007 alienating the schedule property to one Raparla Saraswathi; that defendant had no right to alienate the plaint schedule property or any part thereof; that registered sale deed dated 12.01.2007 is not valid and binding; that the plaintiff got filed suit O.S.No.330 of 2007 against the defendant and her vendee for declaration and recovery of possession; that having bore grudge, defendant is obstructing the plaintiff and his wife for residing in the plaint schedule property; that plaint schedule property consists of six rooms including verandah; that the plaintiff has been residing in three rooms on Southern side and in the two room and verandah on Northern side, defendant has been residing and hence, filed the suit for injunction.
5. Defendant filed written statement and contended interalia that her husband has no right to execute Will for whole of the property, since he got one grandson Parvathaneni Bhaskara Lakshmi Swaroop through his deceased first daughter Swarajya Lakshmi; that 2nd daughter of Rayulu by name Dhonepudi Ramadevi is also a coparcener and the plaint schedule property is the ancestral property; that defendant is Class-I heir of deceased Rayulu along with daughter; that sale deed dated 12.01.2007 executed by defendant in favour of R.Saraswathi in respect of some landed property is valid and binding on the plaintiff; that neither the plaintiff nor his wife are in the village and eventually, prayed the Court to dismiss the suit.
6. Basing on the above pleadings, the trial Court framed the following issues:
(2) To what relief?
7. On behalf of plaintiff, the plaintiff examined himself as P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-8 were marked. On behalf of defendant, defendant examined herself as D.W.1, however her evidence was eschewed and D.W.2 was examined. No documents were marked.
8. Trial Court on consideration or oral and documentary evidence dismissed the suit by judgment and decree dated 29.11.2012. Aggrieved by the same, plaintiff filed appeal A.S.No.110 of 2013 on the file of I Additional District Judge, Eluru. Pending the appeal, sole respondent died and respondents 2 and 3 were added as per orders in I.A.No.206 of 2019 dated 02.05.2019.
9. Lower appellate Court being final fact finding Court framed the following points for consideration:
(2) Whether the judgment of
THE APPELLATE COURT SHOULD NOT REMAND A CASE MERELY BECAUSE IT CONSIDERED THAT THE REASONING OF THE LOWER COURT IN SOME RESPECTS WAS WRONG.
The appellate court must provide cogent reasons for remanding a case, and it should decide based on existing evidence if sufficient, rather than remanding without due justification.
The remand order can only be made if the trial court skips finding on certain issues or decides the suit only on a preliminary issue. The court found that the trial courts had decided the suits on me....
Point of law: Rule 23- A it is evident when the suit is decreed otherwise than on a preliminary issue and retrial is considered necessary, it is only then that the case has to be remanded. In other w....
The appellate court must decide cases based on available evidence and cannot remand without necessity, as doing so prolongs litigation without serving justice.
The appellate court is mandated to provide reasoned findings and reassess evidence independently, as per the Code of Civil Procedure.
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