The court upheld the authority of appellate courts to remand cases for amendments to ensure all relevant issues and properties are addressed for just decisions.

ORAL JUDGMENT

This matter is listed for admission. I have heard learned counsel for the appellants.

2. The order challenged before this Court is remanding the matter in R.A.No.75/2019 by allowing the application filed under Order 6 Rule 17 of CPC and the same is allowed on cost of Rs.2,000/-. While allowing the application, the First Appellate Court set aside the judgment and decree passed in O.S.No.890/2012 and the matter is remanded to the Trial Court for fresh disposal with a direction to the Trial Court to accord an opportunity to the plaintiff to carryout amendment of plaint by including the house property and defendants to file written statement or additional written statement, if any and to dispose the suit by giving opportunities to both parties to adduce evidence and date is also fixed for appearance without expecting any notice and also directed for early disposal of the suit.

3. The counsel appearing for the appellants in this second appeal would vehemently contend that the First Appellate Court committed an error in allowing the application filed under Order 6 Rule 17 of CPC . The counsel would vehemently contend that the First Appellate Court did not peruse the proviso to Order 6 Rule 17 CPC and committed an error and the First Appellate Court ought not to have remanded the matter. The counsel would vehemently contend that even the First Appellate Court itself would have given an opportunity to both the parties, record evidence and would have sent the matter to the Trial Court to record the evidence and give finding on that keeping the matter pending before the First Appellate Court and the same has not been done. Hence this Court has to interfere with the order of the Trial Court.

4. Having heard learned counsel for the appellants and also on perusal of material available on record, O.S.No.890/2012 was filed for the relief of partition and separate possession in respect of the suit schedule properties, particularly to hold that registered sale deed dated 31.08.2007 is not binding upon the plaintiff's legitimate share. Having considered the written statement, the Trial Court framed the issue with regard to whether the plaintiff proves that she herself and defendant Nos.1 to 5 constitute Undivided Hindu Joint Family and suit schedule properties are the joint family properties, whether plaintiff proves that alienation made in respect of item No.2 in favour of defendant No.6 by defendant No.2 is not binding on her share and whether defendant No.6 proves that item No.2 of the schedule property was sold by defendant No.2 and her children for family necessities. The Trial Court answered issue Nos.1 to 3 in the ‘affirmative’, but dismissed the suit, in coming to the conclusion that P.W.1 has given clear admission in the cross-examination that his was having 7 acres of land and also a house at Basavegowdana Palya. Taking note of the said admission, the Trial Court comes to the conclusion that even after stating about the existence of other properties of plaintiff’s father, she did not make any effort to include those properties in plaint to claim share. This shows the malafide intention of plaintiff not to include other properties of her father and subject it to partition. This fact being admitted by P.W.1 requires no proof from other side. Therefore, suit is liable to be dismissed for non-joinder of all the properties of the family.

5. When such observation is made while passing an order, in the appeal, an application is filed under Order 6, Rule 17 CPC and the same is considered as point No.1 whether the proposed amendment is necessary for determination of real controversy between the parties. The First Appellate Court having taken note of the grounds which have been urged, whi