VENKATAMMA Vs. NANJAMMA

JUDGEMENT

(1.) Defendants have filed this appeal questioning the correctness and legality of the Judgment and decree passed by Fast Track Court-I, Hassan in R.A.277/2004 (old No.47/2001) dated 15.01.2009 whereunder the Judgment and decree passed by trial court in O.S.566/1989 dated 28.02.2001 came to be set aside and matter has been remanded to trial court for adjudication afresh on the ground that application filed under Order XLI Rule 27 for additional evidence by defendants and application filed by defendants 2 and 3 under Order VI Rule 17 CPC seeking apportionment of shares being allowed for remanding the matter.

(2.) I have heard the arguments of Sri.A.S.Mahesha, learned counsel appearing for appellants and Sri.Madhusudhan, learned counsel appearing for R-1 to R-3. R-4(1) and R-4(2) are served and unrepresented. Learned advocates appearing for both the parties submit though appeal has been admitted on 26.05.2010 substantial question of law having not been formulated they pray for formulating the same.

(3.) It is the contention of Sri.A.S.Mahesha, learned counsel appearing for appellants that lower appellate court committed a serious error in remanding the matter to trial court when the judgment and decree passed by the trial court was based on proper appreciation of evidence and even otherwise if an application filed for additional evidence by appellants seeking for production of additional evidence by invoking Order XLI Rule 27 of C.P.C being allowed would not be a ground to remand the matter since the lower appellate court itself could have taken said evidence or recorded the said evidence or in the alternative it could have directed the trial court to record such additional evidence and transmit the additional evidence so recorded by trial court back to appellate court to enable it to arrive at a conclusion based on the entire evidence on record. Non consideration of contours of remand it has resulted in erroneous Judgment and decree being passed namely entire matter being remitted back to lower appellate court and as such he contends that appellate court could not have remanded the whole case by setting aside the well considered Judgment and decree passed by trial court. In support of his submission he has relied upon the following Judgments: