GUNDEGOWDA AND ORS. Vs. RANGAMMA

JUDGEMENT

(1.) PETITIONERS are appellants in R.A. 155/2013. Being aggrieved by order of rejection of application filed by them under Order XLI Rule 25 of CPC wherein appellate Court was sought to frame an issue regarding limitation and to refer the matter to trial Court with a direction to trial Court to take additional evidence on the said issue and to decide suit on merits.

(2.) I have heard Sri Vighneshwar S. Shastri, learned counsel appearing for petitioners and perused case papers.

(3.) A bare reading of Order XLI Rule 25 of CPC would indicate that if in the opinion of the appellate Court, the trial Court has omitted to frame or try an issue or determine any question of fact which appears to the appellate Court was essential to arrive at a right decision of the suit on merits, in such an event, appellate Court can frame issue/s and can refer the same for trial to the trial Court from whose decree the appeal is preferred. Said Rule would also indicate that after such reference, such Court has to proceed to try such issue which has been framed by the appellate Court for adjudication by recording evidence and return evidence so recorded to appellate Court together with its finding recorded thereon and reasons therefor within the time that may have been fixed by the appellate Court. To put it differently, if appellate Court comes to a conclusion that trial Court has omitted to frame or try an important issue arising from pleadings and same was essential for arriving at a right decision in the suit, then no useful purpose would be served in remanding entire case. As such, appellate Court can frame an issue and refer it for being adjudicated by trial Court, retaining the appeal on its own file, and directing the trial Court to take evidence on such issue and submit the same with its finding thereon and on receipt of such finding, appellate Court may determine and proceed to adjudicate the appeal.