TEJAWA Vs. VEERABASAPPA RUDRAPPA MAREGUDDI

JUDGEMENT

(1.) This Miscellaneous Second Appeal is filed against the order dated 5-9-1990 passed in R.A.84/85 on the file of the Additional Civil Judge, Bagalkot, allowing the appeal, setting aside the Judgment and Decree passed by the Munsiff, Hungund in O.S.No.41/1981 dated 19-10-1985 and remanding the matter to the trial Court for disposing the case according to law.

(2.) The appellants filed a suit in O.S.No.41/1981 before the Munsiff, Hungund for declaration of title and possession of the suit property against respondent 1 (a) and father of other respondents and another. The suit was decreed on 19-10-1985. The said order was challenged before the Civil Judge, Bagalkot in R.A.84/85 by the respondents. The learned Civil Judge allowed the appeal, set aside the Judgment and decree dated 19-10-1985 passed by the Munsiff, Hungund and remanded the entire suit to the trial Court for fresh disposal. The appellants who were the plaintiffs have challenged this order in this appeal.

(3.) Shri P.H. Gotkhandi, learned Counsel for the appellants, contends that the learned Civil Judge disposed of the appeal merely because he felt that two additional issues were necessary and without going into the merits of the case. There can be no remand without the Appellate Court after fully considering the entire facts and circumstances of the case come to the conclusion on merits that the decree should be reversed or set aside in the interest of justice. The learned Civil Judge in para-12 of his Judgment clearly says that he has not gone into the merits of the case and disposed of the entire appeal merely because he felt that two issues have not been framed. Assuming that framing of two additional issues are necessary, there was no need for him to remand the suit for fresh disposal. The learned Counsel for the appellants contends that there were enough materials before the learned Civil Judge to answer the said issues and that the trial Court has already adverted to those controversies even though thete were no specific issues. It is important to note that the learned Civil Judge has not held that the materials before him were not sufficient to give a finding on those two issues. It appears to me that he has also not taken into account the provisions of Rule 25 of Order 41 CPC under which specific issues are sent to the trial Court for finding, without resorting to a fresh trial. I am not suggesting that the learned Civil Judge should have called for a finding in this regard. I am only pointing out the various options that are available to the Appellate Court in such circumstances. In the circumstances, I am of the view that the order of remand passed by the learned Civil Judge is not sustainable.