Saraswathamma vs Vasanthammani URS

A.V. Chandrashekara, J.—Order dated 09.11.2012 passed by the II Additional District Judge, Mysuru passed in R.A. No. 124/2009 is called in question by filing an appeal under Order 43 Rule 1(u) of CPC.

Heard the learned counsel appearing for the parties and matter is admitted to consider the following substantial question of law:

"Whether the First Appellate Court has committed serious error and illegality in remanding the matter to the Trial Court without framing additional issue by itself and considering the same?" 3. The appellant is the plaintiff in an original suit bearing O.S. No. 1/2007 pending on the file of the Civil Judge (Sr.Dn.), K.R. Nagar. Respondents are the defendants in the said suit. Suit came to be filed for the relief of specific performance based on an agreement of sale said to have been executed on 15.04.1991 and 15.03.1994. The said suit was contested by filing detailed written statement and issues came to be framed. Issue No. 1 was answered in the affirmative and issue Nos. 2 and 3 were answered in the negative. Ultimately, suit of the plaintiff came to be dismissed by a considered judgment dated 28.02.2009, as against which the appeal under Section 96 of CPC was filed before the District Court at Mysuru and the said appeal has been allowed by remanding the matter to the Trial Court.

While remanding the matter, the learned Judge of the First Appellate Court has directed the Trial Court to frame two issues, 1) In regard to limitation; 2) in regard to refund of earnest money.

The First Appellate Court dealing with an appeal under Section 96 of CPC has all the trappings of a regular Civil Court dealing with the original suits. When this is the legal position, it was incumbent upon the First Appellate Court to have considered the proposed issues by itself.

In the present case, the approach adopted by the learned Judge of the First Appellate Court in remanding the matter to the Trial Court is contrary to the provisions of Order 41 Rule 23(A) of CPC, more particularly when the remand is an open remand. What exactly should be the approach in such cases by the First Appellate Court has been well settled by this Court in the case of Shanthaveerappa Vs. K.N. Janardhanachari, .

In this view of the matter, the approach adopted by the First Appellate Court is improper and illegal. The substantial question of law is answered in the affirmative. Hence, the appeal is liable to be allowed and matter is to be remanded to the First Appellate Court.

ORDER

The appeal is allowed. The judgment dated 09.11.2012 passed in R.A. No. 124/2009 by the II Additional District Judge, Mysuru is set aside. The matter is remanded to the First Appellate Court to deal with the matter by itself by framing necessary issues if it feels that framing of necessary additional issues is absolutely required.

Parties shall appear before the First Appellate Court on 04.03.2015 without fail and the First Appellate Court shall try and dispose of the matter within six months thereafter.

I.A. No. 2/2013, for stay, does not survive for consideration.