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Cites 4 docs
The Wakf Act, 1995
D. Ramachandran vs R.V. Janakiraman & Ors on 19 March, 1999
The Specific Relief Act, 1963
Section 9 in The Wakf Act, 1995

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Andhra High Court
Narsing Rao vs Anjuman Kadeemul Musleemeen on 9 June, 2003

THE HONOURABLE Dr. JUSTICE G.YETHIRAJULU

C.M.A.NO.390 OF 1998

09-06-2003

NARSING RAO

ANJUMAN KADEEMUL MUSLEEMEEN

REFAHEAM THROUGH SECRETARY

SYED TAJUDDIN QUADRI

COUNSEL FOR THE APPELLANT: MR. P.S.MURTHY

COUNSEL FOR THE RESPONDENT: MR. SOMA KONDA REDDY

:Oral judgment:-

This is an appeal preferred by the Respondent in A.S.No.212 of 1993 on the file of the III Member Tribunal for Disciplinary Proceedings-cum-VIII Additional Chief Judge, City Civil Court, Hyderabad preferred against the judgment and decree in O.S.No.214 of 1984 on the file of the IX Assistant Judge, City Civil Court, Hyderabad.

The first appellate Court allowed the said A.S.No.212 of 1993 setting aside the judgment and decree of the trial Court and remitted the matter back to the trial Court for fresh disposal observing that the disposal of the suit is contrary to and without complying with the provisions of the Wakf Act and without framing the relevant issues which would cause prejudice to the parties to the suit. The Respondent who was the plaintiff in the said O.S.No.214 of 1984 filed the said O.S.No.214 of 1984 for declaration that the suit house is part and parcel of the Wakf property and that the Respondent is entitled to the possession thereof after evicting the Appellant and their men from the suit house with mesne profits from the date of the suit till the date of delivery of possession and costs. The Appellant who was the Defendant in the said O.S.No.214 of 1984 denied the title of the Respondent-Plaintiff over the suit property and claimed title for himself contending that it is ancestral property; that the Respondent-Plaintiff is in continuous possession and enjoyment of the same for more than a century and that the suit is barred by limitation. The trial Court, on the basis of the pleadings, ought to have framed appropriate issues but framed the following issues:

(1) Whether the Plaintiff is entitled for the possession as prayed for? (2) Whether the Plaintiff is entitled for the mesne profits? and (3) To what relief?

The trial Court, after recording the evidence on both sides, decided the above issues holding that the Respondent-Plaintiff is not entitled to declaration of title and also to eviction of the Appellant-Defendant as prayed for. Accordingly the trial Court dismissed the said O.S.No.214 of 1984 through its judgment, dated 29-9-1993. The first appellate Court, while remitting the matter back to the trial Court, directed the trial Court to frame appropriate issues on the basis of the pleadings, give an opportunity to both parties to adduce evidence, if any, and decide the matter on merits. The Appellant- Defendant being aggrieved by the said direction of the first appellate Court preferred this C.M.A.

The learned Counsel for the Appellant-Defendant submitted that as there is sufficient evidence adduced by both parties before the trial Court and as the said evidence is sufficient to decide the additional issues, if any, to be framed and as the trial Court gave the finding on the question of title also after considering the evidence adduced by both parties, there is no necessity to frame specific issue to that effect and the parties understood that the evidence was adduced regarding the said issue also, therefore, the first appellate Court ought to have decided the matter on merits instead of remanding the matter to the trial Court.

The learned Counsel for the Appellant further submitted that even if the appellate Court comes to a conclusion that a specific issue or issues are required to be framed, the appellate Court ought to have remitted the matter back only for the purpose of deciding those issues which were not framed by the trial Court by keeping the appeal pending and decide the appeal after receipt of the report from the trial Court and in spite of that, remitting the matter to the trial Court as a whole without complying the provision and without going into the merits of the case is bad under law, therefore, the judgment of the first appellate Court is liable to be set aside.

The point for consideration is whether the judgment and decree of the first appellate Court in A.S.No.212 of 1993 is liable to be set aside?

The learned Counsel for the Appellant drew the attention of this Court to the relevant provision relating to the remand of the matter to the lower Court, which is mentioned under Rule 23 of Order 41 C.P.C.

Order 41 Rule 23 C.P.C. reads:

"23. Remand of case by Appellate Court-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re- admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand."

Order 41 Rule 23-A C.P.C. reads as follows:

"23-A. Remand in other cases - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

Order 41 Rule 24 C.P.C. reads as follows:

"24. Where evidence on record sufficient Appellate Court may determine case finally-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."

Order 41 Rule 25 C.P.C. reads as follows:

"25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from---Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time."

By relying upon the above provisions, the learned Counsel laid stress on the points raised by him that the first appellate Court ought to have sought for a report from the trial Court on a specific issue or issues framed by the first appellate Court instead of remitting the entire matter for retrial and fresh disposal. The learned Counsel for the Appellant relied upon a decision of the Karnataka High Court in H.V.D. SHASTRI v. V.R. APTE1 wherein a single Bench held that where in a suit for an injunction restraining the defendant from making use of the plaintiff's open space in order to effect repairs to his own (defendant's) building the plea of the defendant that he had a prescriptive right had been exhaustively considered by the trial Court and the parties had led evidence on a proper understanding of their respective cases and the suit was decreed, the order of remand made by the first appellate Court on the basis of an alleged omission to frame an issue basing on the plea of the defendant relating to easementary right was unsustainable and the proper course for the first appellate court to follow was the one prescribed under Rule 24 of Order XLI Civil P.C. instead of setting aside the entire judgment and decree and remanding the case for fresh trial.

I am in full agreement with the principle laid down by the said Court. But the circumstances under which the said Court considered the remand of the matter are different from those of the present case. Therefore, the principle laid down in the above decision is not applicable to the facts of the present case. The learned Counsel for the Appellant also drew the attention of this Court to a decision of this High Court in VEERABHADRAPPA v. VENKATAPPA2 wherein a learned single Judge of this High Court gave the following findings: "(1) An appellate Court could remand a suit for fresh disposal to the Court of first instance only in the circumstances laid down in O.41, R.23, C.P.C., and in no other.

(2) A remand ought not to be ordered as a matter of course, or routine, or for statistical purposes.

(3) Inherent jurisdiction cannot be invoked for ordering a remand as the statute contains an express provision, namely O.41, R.23, C.P.C., and where there is an express and specific provision in regard to any matter, inherent jurisdiction must be deemed to have been impliedly excluded in regard to that matter. (4) If the appellate Court feels that any issue or issues had been left undetermined by the trial Court, it may frame such issue or issues and remit the same to the trial Court for a finding, keeping the appeal pending on its file and on receipt of the finding from the trial Court, proceed to hear and dispose of the appeal in the light of the finding and the evidence, if any, recorded in support thereof and of the evidence already on record, following the procedure indicated in Rr.25 and 26 of O.41 C.P.C. There can be no question of ordering a remand in such a case.

(5) If the appellate Court decides to receive additional evidence in appeal under O.41, R.27 C.P.C., it may itself record the additional evidence or direct the trial Court or any subordinate Court to record the same, and send up the evidence so recorded, to the appellate Court, which must then proceed to hear and dispose of the appeal in the light of the fresh evidence and the evidence already on record in accordance with Rr.28 to 30 of O.41, C.P.C. The appeal continues to remain on the file of the appellate Court till the additional evidence is received by it and the appeal heard and disposed of. There can be no question of ordering a remand in this situation also."

I am in respectful agreement with the findings given by the learned single Judge of this Court but the facts and circumstances under which the learned single Judge gave the above findings are different from the facts of this case. In the case on hand, a suit for recovery of possession covered by O.S.No.3505 of 1978 was filed by the Respondent-Plaintiff on the file of the IX Assistant Judge, City Civil Court, Hyderabad against the Appellant-Defendant under Section 9 of the Specific Relief Act. In that suit also, the Appellant- Defendant denied the ownership of the Respondent-Plaintiff and claimed that he took possession from the erstwhile tenant, by name, Adivaiah, and has been in continuous possession and enjoyment of the same. The said suit was dismissed on 12-4-1982 after considering the evidence adduced by both parties. Since the Respondent-Plaintiff failed to get the favourable result in the earlier suit decided to file a suit for declaration of title and for consequential relief of possession. The main relief sought for in the suit on hand is that the Respondent-Plaintiff has got title over the property which is part and parcel of the property of the Respondent-Plaintiff which is a wakf registered under the Wakf Act. The trial Court, instead of framing an issue regarding the question of title, repeated the same issues which were framed in the earlier suit and proceeded to decide the matter on those issues. Though the trail Court gave finding on the title over the property also in issue for recovery of possession, it cannot be said that it was to the knowledge of both parties. Had the trial Court felt, after recording evidence, that an issue on title is required to be framed, it ought to have recast the issues by incorporating an issue on title also. But the trial Court having kept quite till the closure of the suit made surprise to the parties through its judgment by giving a finding on the title also without any issue.

Generally when an issue is framed on the main relief and when there is no issue on consequential relief but a finding is given regarding the consequential relief after giving a finding on the main issue, one would understand that the parties had the knowledge regarding the consequential relief at the time of adducing evidence on the main relief in the light of the circumstances mentioned by the first appellate Court that the trial Court failed to frame appropriate issues. In the light of the above discussion, I am of the view that there is no hard and fast rule that the appellate Court should keep the file with it and ask a report from the lower Court on the additional issue, if any, framed. The wording used in the relevant provisions of Order 41 C.P.C. indicates that there is ample power to the appellate Court either to call for a report from the trial Court or to remand the matter to the trial Court for fresh disposal after framing appropriate issues. But it should not be done as a matter of course or routine or for statistical purposes. Since the first appellate Court genuinely felt that the trial Court committed a serious irregularity in framing appropriate issue on the main relief sought for in the suit, it is a fit case where the parties should be given an opportunity to put forward their respective point of view and evidence on the main issue and it is for the parties either to adduce further evidence or to report no evidence. But the ends of justice requires giving opportunity to both parties on a very crucial issue of declaration of title which is going to affect the parties very much if decided without giving sufficient opportunity to them.

In the light of the above discussion, I do not find any force in the grounds of C.M.A. The C.M.A. is accordingly dismissed. Each party should bear its own costs.

?1 AIR 1975 Karnataka 116

2 AIR 1961 A.P. 226