The main legal point established in the judgment is the importance of framing proper issues in a suit, including issues related to readiness and willingness and bonafide purchase for value, and the appellate court's power to remand the suit for retrial based on the omission of framing and trying essential issues by the trial court.

JUDGMENT :

The Appellant herein is the 2nd respondent/ 4th defendant before both the Courts below filed the present Civil Miscellaneous Appeal before this Court, aggrieved by the order dated 21.01.2021 in A.S.No.24 of 2014 in O.S.No.257 of 2008 on the file of the Court of the X Additional District Judge, Tirupati (in short ‘the first appellate court’).

2. The appellant herein is the 2nd respondent/ 4th defendant; the respondents 1 to 9 herein are the appellants/plaintiffs and respondents 10 to 12 are the respondents/ defendants, who are impleaded as per order of this Court dated 31.03.2022 in I.A.No.1 of 2022 and 13th respondent is the legal representative of deceased 11th respondent, who impleaded as per order dated 19.01.2023 in I.A.No.4 of 2022.

3. Initially plaintiffs filed a suit in O.S.No.257 of 2008 on the file of the court of Principal Junior Civil Judge, Tirupati (in short ‘the trial court’) against the defendants for specific performance of agreement of sale dated 12.06.1974 and for permanent injunction in respect of plaint schedule property. The said suit was dismissed. Assailing the same, the plaintiffs have filed A.S.No.24 of 2014 before the first appellate court. On hearing on both sides, the first appellate court allowed the appeal, by setting aside the decree and judgment of the trial court.

4. Heard Mr. A. Kishore Kumar, learned counsel for the appellant and Mr. M. Sri Atchyut, learned counsel, representing Mr. E.V.V.S. Ravi Kumar, learned counsel for the respondents.

5. During hearing learned counsel for the appellants would contend that the first appellate court erred in its judgment that an issue is omitted and that it needs to be framed and the matter is to be retried does not arise, through as per Code of Civil Procedure prescribes framing of issues and the evidence of the parties to be led in basing on the issues, but it is not mandatory that no finding can be given on a point where there is no formal issue framed by the Court, but it is a fact that both parties pleaded the same or one of the parties pleaded the same and put evidence and each party knows the case of the each other. In such a case, the first appellate court can decide based its judgment on the point involved though a formal issue is not framed by the trial court.

6. It is further contended that the first appellate court erred in its judgment holding that the trial court has mentioned that 1st defendant’s chief examination was filed, but she did not turn up for the cross examination and the chief examination was eschewed and further held that the fact is that chief affidavit of defendant No.1 was not filed, but it was the chief affidavit of 4th defendant and the trial court was not even sure whose affidavit was filed, but the fact remains is that no witness on behalf of the defendants was examined and so it is nothing but a typographical mistake and it will not have any impact on merits of the case. The first appellate court without appreciating the evidence on record and it has got the power to re-appreciate the evidence recorded by the trial court, but instead of doing so, remanded the suit for retrial after framing an additional issue is erroneous and illegal. Therefore the impugned judgment of the first appellate court is based on mere surmises and not in accordance with law. Therefore C.M.A is liable to be allowed.

7. Whereas, learned counsel for the respondents reiterated the contentions urged before the courts below and mainly contended that the first appellate court by relying on a decision of the Hon’ble Apex Court in “Kamal Kumar v. Premalatha Joshi and Others”, 2019(1) ALD 181 (SC) and came to a conclusion that proper issues have to be framed for arriving at a right decision. In the instant case the issues relating to readiness and willingness as well as bonafide purchase by 4th defendant were not framed. Further 4th defendant has not reported that he has no evidence to adduce, but in fact he had filed chief affidavit and opportunity s